Out of office: the work/life balance


Photo by Alex Knight on Unsplash

Continuity of employment is a very important legal concept.

What is it?

The period that an employee has worked for an employer without gaps which would be deemed in some way to break her service.

In Chapter 6 of Introductory Scots Law, I discuss how continuous employment gives employees access to legal rights (amongst other things):

  • Unfair dismissal protection
  • Redundancy rights and payment
  • Family friendly policies
  • Flexible working entitlement

It is important to note that, although employees will be in a much stronger position (legally speaking) than other workers or individuals in the labour market, entitlement to employment rights is not necessarily automatic. They must reach minimum periods of service (without breaks or gaps) in order to qualify.

There may be different lengths of continuous service required to access certain rights, for example:

  • 2 years for entitlement to unfair dismissal protection & payment of statutory redundancy pay
  • 26 weeks for entitlement to shared parental leave & flexible working arrangements.

Continuity of employment is not broken by the following:

  • Sickness absence
  • Holidays
  • Paternity/maternity leave
  • Adoption leave
  • TUPE i.e. transfers of undertakings
  • Temporary working abroad
  • Employer lock-outs (strikes)
  • Military service with the reserves
  • When a corporate body gets taken over by another because of a legal change
  • Time between unfair dismissal and an employee being reinstated
  • When an employee moves between associated employers
  • Temporary lay-offs

Individuals on zero hours contracts and other casual arrangements find it near to impossible to build up the necessary continuous service to gain access to these rights. They simply never work long enough for an employer for continuous periods.

For these individuals, there is also the issue of a lack of employment status which compounds their disadvantaged position in the labour market.

Proposals for reform

It was with interest that I noted that the Labour Party is intending to give new employees the right to request flexible working arrangements from the first day of employment (not from completion of 26 weeks of continuous service – the current legal position). The Labour Party must, of course, win power at the next General Election (whenever that is in these stormy Brexit climes) in order to introduce this reform.

One of the justifications given by the Labour Party for the reform is that it will benefit female employees particularly and will help close the gender pay gap. It’s certainly an interesting proposal.

Critically, the proposal would operate in a way that the employee was entitled to presume that her request would be granted. Currently, there is only a right to request flexible working arrangements – which the employer can refuse. That said, the employer must consider the employee’s request seriously.

Flexible working pattern could include annualised hours, flexi-time, job, sharing, shift working and term time working.

A link to an article about the Labour Party’s proposal can be found below:

Flexible working: Labour pledges new employee rights


Copyright Seán J Crossan, 25 February 2019

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A legal blog by the author of Introductory Scots Law: Theory & Practice (3rd Edition: 2017; Hodder Gibson) Sean J. Crossan BA (Hons), LLB (Hons), MSc, TQFE I have been teaching law in Higher and Further Education for nearly 25 years. I also worked as an employment law consultant in a Glasgow law firm for over a decade. I am also a trade union representative and continue to make full use of my legal background. I am a graduate and postgraduate of the Universities of Dundee, London and Strathclyde. Please note that this Blog provides a general commentary about issues in Scots Law. It is not intended as a substitute for in-depth legal advice. If you have a specific legal problem, you should always consult a suitably qualified Scottish solicitor who will be able to provide you with the support that you require.

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