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Break in service or not...

I am picking up a historical situation, where we've employed a Language Assistant in our independent school. This person has always been employed on fixed term contracts from October to May (approx) over the last few years. They originally started a (fixed term) contract at the school in 2013 which ran from Oct to May, but they have then done this every year up to the academic year 2019/20. They are written to with a new offer for the specific academic year, with dates pertaining to that year, each time. They have not been issued a new contract in this time. On the HR database their start date is recorded as 2013 as they were never made officially a leaver.

We have not had a requirement this academic year (all very unclear due to lockdown/schools opening/closing etc) and are unlikely to do so for the rest of this year. My question is (and I think I have pretty much answered it myself but need a sense check!), do we need to treat this as a redundancy and take into account service from 2013 even though it has been a series of fixed term contracts. It is slightly unusual in that usually if we were doing a fixed term contract for an academic year it would run from 1 Sept to 31 Aug and would be a full year. This one has always cut out in May. This person has not physically worked for the school since the first lockdown in March 2020, when they were furloughed until end May 2020. No formal communication with them since and I am now trying to piece this together. Any advice gratefully received.

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  • Looks like continuity to me. Treat is a a redundancy.
  • In reply to Peter Stanway:

    Thanks - you have confirmed my original thoughts
  • Looks like continuity to me. Treat it as a redundancy.
  • We have FLA’s funded through the British council, they are foreign nationals and contracted October-May. Always a different one every year. Sounds as if you have a historical mismatched arrangement along these lines.
  • Hi Jane

    This sounds much the same as eg Blackpool Pleasure Beach seasonal workers who are on FTCs for the duration of each year's opening season but in many cases return in successive years. In their case the ending of each year's FTC does not break their continuity of employment.

    The applicable law presumes service to continue unbroken unless there is very clear evidence of a definite and / or intentional break and as you’ve been advised there probably isn’t in this case, especially as they were never even designated as leavers.

    Best treat it as redundancy - probably not at all worth risking not doing so, given the fairly modest cost of statutory redundancy and being seen as an organisation to be treating ex employees decently.
  • In reply to David:

    PS
    Maybe not all that modest cost, as eg 7 weeks notice at full usual rate of pay will need to be paid if treated as a redundancy dismissal from 2013 start.
  • If the custom and practice is that they are employed year on year from October to May, it's hard to argue it's any different from any term time contract (just different start and finish dates). I'd definitely treat as continuous.
  • In reply to Nina Waters:

    PS

    The legal argument involves 1996 Employment Rights Act s.212(3)(c) which provides that absence 'by arrangement or custom' does not break continuity. In teaching, for example Ford v Warwickshire County Council may be applicable precedent.