Employment Law – Establishment of Continuous Employment

Maggie worked for the same employer for 12 years as a cleaner. Her employer was a holiday park and as such, every year after New Year’s Day, it shut-down and re-opened on the 1st March. 

Maggie’s worked every Thursday / Friday / Saturday / Sunday. Despite having a zero hours contract, her working pattern had remained for the entirety of her employment as it was consistent with guest arrivals and departures. 

Having never experienced any problems with her employment, there were no disciplinary issues or performance issues to speak of, she was happy in her role until the weeks leading up to the holidays. 

That year there had been new managers appointed at the park. One day at the end of the very busy holiday season when stress was high, an argument broke out between the new housekeeping manager and Maggie about something inconsequential. There was no disciplinary or any formal action taken, it was simply a disagreement. Maggie and the Housekeeping manager agreed to move on and put it behind them with no hard feelings.

The issue

After 1st January of her last year, Maggie finished her shift and, as always, went to say goodbye to the managing director. She was thanked for her work and told: “See you on the 1st March”. Maggie received a text a couple of weeks later checking in with her that again said they were looking forward to her returning on 1st March.

In the weeks on the run up to 1st March, Maggie got increasingly concerned that she had not received the expected information about her return. This normally arrived every year like clockwork and her colleagues had received theirs, but this year hers didn’t arrive. 

When Maggie queried this she received a text saying there was not a job for her anymore. They had taken the decision to drop her hours to the contracted zero and she would no longer be required. She asked why and was told that she was unable to get along with the Housekeeping team so they would not be extending her any hours. She was not given any notice and received no pay.

The case

I agreed to take Maggie’s case because it was clear to me that the employer was using the zero hours contract to end the employment without engaging in any of the legally required processes.

Maggie should have had access to full employment rights.

The reason for dismissal would have been unfair if it had not been for the zero hours contract.

The employer’s arguments were:

1. They could end a zero hours contract at any time with no notice by simply reducing her hours to zero.
2. Maggie had no employment rights as she had no continuous employment; her employment was broken every year due to the annual closure.

Our arguments were:

1. Maggie had established a consistent working pattern that had not varied for 12 years. This is known as “custom and practice” in employment. Accepting this working pattern unchanged for 12 years created an agreement in practice that overruled the zero hours contract. In essence they had created a verbal contract that overruled the zero hours written one.
2. The annual break where the holiday park closed was not a break in her continuous employment; it was a temporary cessation in work that was regular and consistent. 
3. By reducing her hours to zero to dismiss her and not following any processes, the dismissal was unfair.

The Results

The employer argued that Maggie had no rights to bring a claim for unfair dismissal due to not having the required 1 year of service (the case was prior to the change in the law in 2012). 

We successfully demonstrated that the only break in her employment was the annual closure of the park and every year she had been brought back. 

There was also the clear intention of the manager to do the same that year as she had the text message saying they looked forward to seeing her when the park re-opened. 

We were successfully able to argue that the annual break in her employment was considered a temporary cessation under the Employment Rights Act 1996, chapter 1, section 213(3) (b).

With her continuous service established we were then able to successfully argue the unfair dismissal claim. 

Despite having a zero hours contract, we established that her consistent working pattern was the actual contract, not the zero hours written one. 

Since the employer failed to follow any processes or have a fair reason to dismiss her, she was awarded redundancy pay for 12 years and notice pay. This was the right outcome, despite the wrong action that precipitated it.

Employment Law is a very tricky area to operate in and is not to be taken lightly. An employer may think they can find ways around letting someone go fairly, however that may prove to be a costly misunderstanding on how the law can be applied.

Make sure you know what your business should have in place when bringing on an employee, to avoid financial and legal consequences by downloading a copy of my Employment Essentials Guide.