What is considered to be continuous employment?

[Poppy04]

I just wondered if there is anyone on here with knowledge of employment law who may be able to help me.

I was on sick leave from my job for several months following a close bereavement, during which I received sick pay. By the end of April this year they began pressuring me to make a decision regarding a return. I still did not feel in a position to return, so I gave my notice in, however, for some reason I was never issued with a P45.

Around a month later I decided I had been a bit hasty and contacted my employer to ask if I could return part time 3 days a week (was previously full time) on a less stressful role than previously. They agreed and told me this was a “new position rather than a continuous role” and that they could only offer me the “starting salary” for this role.

I am now back to doing more or less what I was doing before. They have now offered me a pay rise and asked me to go up to 4 days, which I am happy to do, however, I would like to raise with them the issue of holiday entitlement and whether my employment is classed as continuous given that I never received a P45. We are entitled to 20 days holiday a year, running from January to December. Assuming that my employment is continuous, I believe I am entitled to 6 days holiday pay from June to December, starting again at 16 days for the year from next January. More importantly, I would like my employment to be regarded as continuous for redundancy purposes in case this happens at any point (I have been there over 10 years) or would they be likely to try and make me redundant on the basis that I gave my notice in even though I never received a P45? I just want to make sure I am correct before I raise these issues with them and don’t know anyone IRL with the knowledge to ask.

you can ask, but they are not obliged to honour your previous service.

you resigned and contacted them a month later, so thats long enough for them the argue that it was a proper 'break'. Your P45 is a red herring - it may be that they hadn't issued your P45 by the time you decided to return and so they kept it and used it for your tax code.

Id focus your argument for honouring your service based on being a loyal employee before your bereavement and how well you have been working since you returned.

Different employers have different rules. Your T&Cs should make it clear

Around a month later
It could be you were not issued with a P45 because there wasn't a full month between you resigning and being re-employed. They then gave your P45 to your new employer, i.e. them. But they should still have given you Part 1A of the document, you should ask for this. See www.gov.uk/paye-forms-p45-p60-p11d

They agreed and told me this was a “new position rather than a continuous role”
I think this is pretty clear. You have no continuity of employment. You chose to resign, there is no benefit to them of pretending you didn't and giving you CoS benefits.

Your contract for the new position should make it clear. You have been given a contract?

P45 won't make any difference to it though. There is often a delay in issuing a P45, but it doesn't mean you're still employed.

Sounds like they've made it clear it wasn't continuous. Did they issue you a new contract?

I don’t have a contract of employment to refer to (no one there has ever had one). It is a very small firm with no HR Department, so all I have to go on is e-mails I have received from them.

From what I have read, a P45 should be issued “without unreasonable delay” and ideally with your final pay slip. I received a final pay slip showing my accrued holiday entitlement up to April, but no P45.

Even if my employment is not considered to be continuous for redundancy purposes, would I not still be entitled to 6 days holiday pay for June to December? I’m not bothered about taking the holiday but should I not be entitled to be paid for it or is that just if the employment was continuous?

Your employment is not continuous for any purpose. Sorry. If you have holiday due from this employment, you are entitled to take it - but you have to take it.

A P45 going astray does not mean you are still employed, it means a piece of paper has gone astray. It is very clear that this is not continuous employment.

I didn’t understand your holiday comment in your first post and I don’t understand it in your second post either. Your holiday entitlement is exactly the same whether this is continuous employment or not.

From what I have read, a P45 should be issued “without unreasonable delay” and ideally with your final pay slip. I received a final pay slip showing my accrued holiday entitlement up to April, but no P45.

I think the crucial words here are "should" and "ideally"

You don’t need to have received a P45 for your resignation to be valid. You resigned; they accepted.

You went back after some time and they made it clear it was a new role and not continuous service.

It wouldn’t be considered continuous service for holiday or redundancy pay, unless they decided to give this to you voluntarily.

I've never heard of anyone being signed off sick for months due to a bereavement. Most companies offer a few days bereavement leave so you've been lucky here.

I don’t have a contract of employment to refer to (no one there has ever had one). It is a very small firm with no HR Department, so all I have to go on is e-mails I have received from them.

If you’ve worked somewhere for 10 years with no official contract then how would you ensure you have any status whatsoever re holiday/redundancy pay?

Without a contract even if you hadn’t resigned then come back I think all of that could be on shaky ground with no contract.

Where/how are your holidays confirmed if you have no contract to refer to?

Holiday pay applies regardless of whether the employment is continuous.

The entitlement for a full year is 20 days, so if you worked 1st June - 31st December you would be entitled to 7/12th of that (pro rata if part time).

I started a new job partway through this year, and got part of the year's holiday entitlement - that's totally normal.

Where/how are your holidays confirmed if you have no contract to refer to?

20 days is the statutory minimum. Even with no written contract she'd be entitled to 20 days by law.

Aren’t they just giving the holidays pro rata, if you’re part time you can’t expect to get full time holiday allowance.

I've been signed off for two month as my mum has died, i know many other people who have had the same, so not really sure what you are talking about

Not continuous

continuity is broken by a break of a complete week ending on a Saturday.

there are proposals to make it a month but not implemented yet.

You will accrue holiday from when you restarted but the right is to take the holiday, not just be paid out for it.

you need to tell them you want a written statement of particulars too. This is a legal requirement

would I not still be entitled to 6 days holiday pay for June to December

Are you asking if your employer has to pay you an extra 6 days' pay for the holidays you haven't taken? The answer to that is no. If your employer's leave year runs to the end of December you have until then to use your accrued holiday, subject to any flexibility in your employer's holiday policy to carry it over. If you don't use it or carry it over they are not obliged to pay you for it. The situation is different where someone leaves employment with accrued unused holiday.

Some employers offer continuous employment, when there has been a short break in service, however they are not obliged to do so.

In the circumstances you resigned, you then returned, there was a break of employment, however short that period was.

Given the circumstances around your resignation some employers would offer continuous employment (happened to me once, with a much longer break) it was a generous thing for them to do so, as it made a lot of difference to my pensionable service and holiday entitlement.

@mrsed1987 did you get signed off sick or get bereavement leave?