Does a gap between jobs break continuous service?

Under the Employment Rights Act 1996, continuity of employment is counted week by week, and a week that does not count breaks it. A gap between two jobs with the same employer therefore usually means the statutory clock starts again, unless the gap falls under one of the Act’s exceptions. NHS and local government agreements are more generous for sick pay and annual leave, so the answer depends on which right you mean.

How the law counts weeks

Section 212 says a week counts if, for the whole or part of it, your relationship with your employer is governed by a contract of employment. A part week is enough. Section 210 says questions of continuity are decided week by week, and that a week which does not count breaks continuity, subject to a handful of exceptions. It also presumes that employment has been continuous unless the contrary is shown, so the burden is on whoever says there was a break.

Some weeks count even without a contract. The Act lists weeks in which you were:

• incapable of work because of sickness or injury
• absent on account of a temporary cessation of work
• absent in circumstances where, by arrangement or custom, you are regarded as continuing in the employment

No more than 26 weeks count under the sickness limb between periods when a contract was in force. Section 216 says a week in which you take part in a strike does not count but does not break continuity either, and section 217 protects some reservists returning from armed forces service. Section 215 deals with work outside Great Britain.

A gap of several weeks where you were simply between jobs usually does not fall into any of these. That is why a former employee who is re-hired a month later often starts again for statutory purposes such as redundancy pay, which needs two years’ service, as set out in redundancy rights.

Exceptions that avoid a break

Some changes of employer do not break continuity. Under section 218, continuity survives when:

• a business or undertaking transfers to a new employer (see TUPE)
• you move to an associated employer
• you move between the governing body of a maintained school and its local authority
• a body corporate is substituted as your employer by or under an Act

Moves between NHS employers are covered by section 218 only in a narrow case: professional training employment that involves successive posts with different health service employers and is specified in an order. For everyone else, continuity between trusts comes from the NHS handbook, not the statute. Continuous service in the public sector gives the wider picture.

How the NHS handbook treats gaps

The handbook’s rules are contractual and cover specific entitlements. Paragraph 12.5 says that on returning to NHS employment, earlier NHS service counts towards sickness absence entitlement where the break or breaks in service were 12 months or less. Paragraph 12.4 says earlier NHS service counts towards annual leave on return, and the paragraph gives no time limit for that.

For redundancy pay the handbook has two tests. To count different NHS employers’ employment as continuous for the qualifying period, there must be no break of a week or more between jobs, measured Sunday to Saturday. For the amount, a break of 12 months or less does not remove the service before it. Details are in NHS redundancy pay.

How the Green Book treats gaps

The local government Green Book counts continuous previous service with listed public authorities for annual leave, sick pay and maternity pay. Where someone returns after a break for maternity reasons or for caring for children or other dependants, earlier service counts for sickness and maternity schemes if the break does not exceed eight years and no permanent paid full-time job intervened. For annual leave the eight-year limit does not apply, though the full-time job condition does. The full picture for returners is in returning to a council job.

Those Green Book paragraphs deal with breaks for caring and similar reasons. They say nothing about a gap for other reasons, so ask your employer.

What to check

• Write down the exact dates your previous job ended and the new one began, including any bank or temporary work in between.
• Ask HR for the continuous service date they hold for statutory rights, and the separate date used for NHS or council leave and sick pay. They are often different.
• If the date is wrong, ask for it to be corrected in writing, and keep old contracts, payslips and P45s as proof.
• For a dispute about statutory continuity, ACAS or your union can advise on your particular situation.