Jonah Patel
Teachers and other employees are considered to have continuous service when they have worked for the same employer without a break. Continuous service is calculated from the first day of work, and certain employee rights depend on the length of service. For example, the right to claim unfair dismissal and the right to a statutory redundancy payment are dependent on the length of continuous service with the employer. A break in continuous service is usually constituted by a period of one complete week between two contracts of employment. However, there are certain exceptions where short breaks in normal employment can still be counted towards continuous employment. For instance, continuity of service is retained when an employee is absent from work due to a temporary cessation of work. Additionally, career breaks of up to five years are allowed within any 20-year period of local authority service, but these do not count towards incremental progression or occupational benefits such as maternity pay or sick pay.
| Characteristics | Values |
|---|---|
| Continuous service definition | When an employee has worked for the same employer without a break |
| Calculation of continuous service | From the first day of work |
| Continuous service and employee rights | Certain employee rights depend on the length of service, e.g. the right to claim unfair dismissal and the right to a statutory redundancy payment |
| Types of time away from work that count towards continuous employment | Sickness, maternity, paternity, parental or adoption leave, moving between associated employers, transfer of business from one employer to another |
| Types of time away from work that do not count towards continuous employment | Periods of absence for certain reasons, days when employees are on strike |
| Career break definition | A period of special leave without pay providing a formal opportunity to obtain an extended break |
| Career break length | Minimum of 6 months, maximum of 5 years within any 20-year period of local authority service |
| Career break and continuous employment | Employment before and after a career break is treated as continuous |
| Career break and pension | The period will not count towards a teacher's pension |
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What You'll Learn
A break of one week between contracts
In the UK, continuous service refers to when an employee has worked for one employer without a break. Continuous employment is calculated from the first day of work, and certain employee rights depend on the length of service.
Some breaks in normal employment do not affect continuous service and are still counted towards the continuous employment period. These include sickness, maternity, paternity, parental or adoption leave, and career breaks, provided there is still an employment contract in place. Additionally, when an employee moves between associated employers or when a business is transferred to another employer, this does not break continuous service.
It is important to note that a break in continuous employment can impact an employee's entitlements and rights. Once an employee completes a specific period of continuous employment, they gain further rights and benefits, such as the ability to claim unfair dismissal and receive redundancy payments. Therefore, employers must understand how a break in employment contracts might affect their employees' continued employment to provide them with appropriate entitlements.
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Moving between associated employers
Continuous service is when an employee has worked for the same employer without a break. This is calculated from the first day of work, and certain rights are dependent on the length of service.
When an employee moves between associated employers, their service is usually still continuous. For example, if a teacher moves from a school in York to a position at North Yorkshire County Council, they will have retained their local government continuous service, but they will lose their previous continuous service as they have moved to a new employer.
There are certain statutory exceptions where short breaks in normal employment can still be counted towards continuous employment. For example, if a teacher takes a career break, their employment before and after the break will be treated as continuous. However, the break does not count towards incremental progression, and teachers who become pregnant during the break are not entitled to occupational maternity pay.
Other exceptions include when a business is transferred from one employer to another, when an employee is reinstated following dismissal, and when an employee is dismissed on the grounds of ill health but is re-employed within 26 weeks.
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Transfer of business ownership
When it comes to the transfer of business ownership, there are several factors to consider regarding continuous service for teachers or other employees. The specific circumstances, such as the structure of the business, the jurisdiction, and the nature of employment contracts, play a crucial role in determining whether a break in continuous service occurs.
In the context of business transfers, an employee's period of continuous employment is generally maintained across different owners. This means that the new owner inherits the long service leave obligations for the employee, including any accrued leave from their time with the previous owner. This concept is known as the "transfer of business" or "transmission of business." For example, if a teacher has worked for a school for several years and the school is sold to a new owner, their continuous service is generally preserved, and the new owner becomes responsible for their long service leave entitlements.
However, it's important to note that the specific laws and regulations governing this situation may vary depending on the jurisdiction. For instance, in Western Australia, the "transfer of business" provisions in the Long Service Leave Act apply to changes in business ownership that occurred on or after 20 June 2022. Prior to this date, the concept of "transmission of business" was applicable. Additionally, in some jurisdictions, there may be specific rules and guidelines, such as those outlined in the Green Book for support staff.
The structure of the business being transferred also plays a role in how continuous service is affected. For example, in the case of a sole proprietorship, the business cannot continue without the owner, but the assets can be sold or distributed according to the owner's will or local laws. On the other hand, partnerships or limited liability companies (LLCs) may have guidelines in their operating agreements for handling ownership transfers if a partner or member departs. The process for transferring ownership of an LLC can be complex, so consulting with an attorney familiar with state laws is advisable.
When a business is transferred, it's essential to address financial obligations, such as active loans, lines of credit, or invoice factoring contracts. Typically, the buyer assumes responsibility for existing small business loans, but this must be clearly stated in the sale agreement. Consulting with a tax professional can help understand the tax implications of changing ownership percentages. Additionally, working with an Accredited Business Valuation (ABV) professional ensures an accurate business valuation during the transfer process.
In summary, while the transfer of business ownership can be a complex process, it generally does not constitute a break in continuous service for employees, including teachers. However, it's important to consider the specific circumstances, jurisdiction, and applicable laws and regulations to ensure compliance and protect the rights of both employees and the new business owner.
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Reinstatement after dismissal
However, if an employee is dismissed and their contract is terminated, their continuous service would be broken. If they are later reinstated, their new continuous service period would begin from their reinstatement date. This new period would not include their previous service time.
It is important to note that certain types of time away from work, such as sickness, maternity, or paternity leave, are not considered breaks in continuous service. Additionally, when a business is transferred from one employer to another, such as a school converting to an academy, this does not constitute a break in service.
In the case of teachers or other educational staff, maintaining continuous service can be important for certain employment rights and benefits. These may include the right to claim unfair dismissal, statutory redundancy payments, or other benefits tied to length of service.
Therefore, while reinstatement after dismissal can disrupt continuous service, it is important to consider the specific circumstances and seek appropriate advice to understand the impact on an individual's employment rights and benefits.
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Lengthy breaks and career breaks
A career break is a period of special leave without pay, providing teachers with a formal opportunity to take an extended break from work. Career breaks can be taken for a minimum of 6 months and a maximum of 5 years within any 20-year period of local authority service. It is important to note that a career break does not count towards incremental progression in a teacher's career. Additionally, teachers who become pregnant during a career break are not entitled to occupational maternity pay, and those who fall ill are not entitled to occupational sick pay.
Career breaks of up to 2 years do not usually affect continuous employment status. For statutory and contractual purposes, employment before and after a career break of 2 years or less is treated as continuous. However, if the break exceeds 2 years, redeployment within the Council may be necessary.
When considering a lengthy break, it is essential to be aware of the implications for occupational pensions and National Insurance (NI) contributions. A career break will not count towards a teacher's pension, and there may be an impact on NI contributions for State benefits. Therefore, it is advisable to seek detailed advice regarding the financial implications of taking an extended break.
While continuous employment is typically calculated from the first day of work with a single employer, certain exceptions allow for breaks in employment while maintaining continuity. For example, a break in employment may occur due to the end of a temporary contract, and as long as the termination is handled lawfully, it may not constitute a break in continuous service. Additionally, specific statutory exceptions exist, such as when a business is transferred from one employer to another, or when an employee is reinstated following dismissal.
In summary, lengthy breaks and career breaks in teaching can have implications for continuous service, career progression, and financial entitlements. It is important to carefully consider the length of the break, the reasons for taking it, and the potential consequences for employment status and benefits. Seeking advice and understanding the specific rules and regulations pertaining to continuous service and career breaks is essential for informed decision-making.
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Frequently asked questions
Continuous service refers to when a teacher has worked for the same employer without a break. This is calculated from the first day of work, and certain rights are dependent on the length of service.
A break in continuous service is usually a period of one complete week between two contracts of employment. However, there are exceptions where short breaks in normal employment can still count towards continuous employment. For example, a break in service does not occur when an employee moves between associated employers or when a business is transferred from one employer to another.
For statutory and contractual purposes, employment before and after a career break is treated as continuous. However, the break does not count towards incremental progression, and teachers who become pregnant during this time are not entitled to occupational maternity pay. Additionally, the period will not count towards a teacher's pension.
