24

Continuous Service

If a member of staff joined in June 2019, do you class up to 31st Aug 2019 as 1 years service and up to date she would be in her 2nd year of service for statutory purposes, even though shes been with us for less than a year? Could anyone clarify please

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  • Karen

    What is this significance of 31 August?

    If this is the public sector then perhaps there are peculiarities, but generally if someone started in June 2019 they will have gained one year's continuous service in June 2020. Or am I missing something here?
  • Sorry I don't fully understand

    But if they joined on 1st June 2019 then up to 31 May 2020 is 1st years service. Not sure what the August date means.
  • Sorry I don't fully understand

    But if they joined on 1st June 2019 then up to 31 May 2020 is 1st years service. Not sure what the August date means.
  • Hi

    Am also confused about any possible relevance to any August date.

    If employment commenced June 2019 then 1 year service is completed (on day prior to start date) June 2020 and 2 years service 2021.

    Eg: if commenced 15th June 2019 then 2 years service attained on 15th June 2021.

    The 2 years required for any statutory purposes (e.g. potential to claim for unfair dismissal) means a full 2 years employment completed so in above example after 15th June 2021. It does not mean being in 2nd year of employment.
  • In reply to Susan May:

    Oops. Typo's.

    Above should read that if employment commenced 15th June 2019 then 1 and 2 years service reached on 14th June 2020 and 2021 respectively.
  • In reply to Susan May:

    Never actually tested this Susan, but I suspect the service will have been achieved at midnight on 14th June - i.e. at the end of the day for the 14th June (also equates to 00h00 on 15th June).
    There must be some case law that clarifies this, but I can't readily find it. Maybe someone else has this to hand?

  • I would suggest that 01 Jan to 31 Dec is a full year and so on, so would apply this principle to your dates. Remember that if your new employee has come from an organisation covered under the Local Government Modification order, previous service will also count as continuous service for redundancy purposes.
  • In reply to Louise Highmore:

    Louise, can you clarify your approach with this practical example?

    If date joined is 1st January (pretend it's a working day), at what point on the day of 31st December have they completed a year's service?

    a) 00h00
    b) start of working day
    c) end of working day
    d) midnight (seconds before 1 January)
    e) none of the above, but 00h00 on 1st January, i.e once a complete calendar year has ended - a legal principal applied in stock option and sharesave plans to determine at what point a 5-year (for example) plan ends.

    Many thanks
  • In reply to Ray:

    Devil really in the detail with this, Ray!

    Generally it’s regulated by Employment Rights Act 1996 s. 210 et seq. which as I understand it has it that continuous service is to be measured in weeks and that any week *or part week* during which there was employment ( not at all necessarily work done) will count towards continuity of service. A week is defined as ending with a Saturday, so in order to break continuity of service, two Saturdays have to pass by.

    One must also ask the question re continuity of service for what specific purpose? and be sure that such as above section(s) of the ERA are really applicable to that purpose. For example, with calculating length of service applied to working out redundancy payment entitlements I dimly remember having to use special calendars perhaps to take account of this ‘measured by the week’ thing - really can’t remember the exact reasons or whether or not they still apply.

    So, does this mean that, eg if an employee would have reached two calendar years continuous employment on a particular Friday but resigns with immediate effect on the Monday or Tuesday immediately before this particular Friday that as at their effective date of termination they had attained two complete years continuous service so therefore might be able to eg bring a claim for constructive unfair dismissal?

    - really not sure, and it would need a bigger picker of nits than even I am to pore  through all the statute and case law to find out.

    But just throwing it into the pot!

  • In reply to David:

    @David
    And what a devil, eh David?
    As I mentioned in my post, the only occasion when I've had legal confirmation on how a period lika a month, year, week is measured was when someone contested the refusal to accept an excercise of stock-options on what they believed to be the final day of the plan. Is this a broader legal principle, applicable in other areas? I don't know, but would love for someone to clarify this in the context of length of service......
  • In reply to Ray:

    Hi Ray

    I had a similarly baffling conversation with an employment lawyer when calculating entitlement to redundancy pay when someone's 'anniversary date' was the day after the date of redundancy. Whilst I don't recall the case law, I do recall a conversation where the lawyer was trying to explain that there aren't necessarily 365 days in year (who knew?!) For that situation, we came to the conclusion that as the employee had worked the 365 days of the year, the additional years' service was taken into account for the purpose of calculating redundancy pay therefore the commentators above explanation of 1 June 2019 - 31 May 2020 would apply.
  • In reply to Ray:

    I would assume this to and was confirmed to me by the company that used to produce our contract. The Green book has further info on continuous service.
  • Hi Karen, is the query in relation to sick pay entitlements for teachers? This is the only example I’m aware of where a “year of service” isn’t as the name would suggest! For teachers it is 1 April to 31 March so a teacher joining on 1 September for example is in their second year of service for sick pay purposes on 1 April the following year (7 months later).
  • In reply to Emma:

    Hi emma i think this is where im getting muddled up i thought id seen this somewhere thankyou for this
  • Hi Karen, yes it’s in the burgundy book if you do need to reference it, hope this helps!