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Continuity of service: When casual workers turn permanent

Many organisations take on workers on 'zero hours' or casual contracts in order to meet fluctuating staffing needs. But when one of these casual workers becomes a permanent employee, does this mean that their previous time working for you counts towards their period of continuous employment?

Writing for HRZone, Esther Smith, a partner at Thomas Eggar, stresses that to accrue continuous employment, the worker must be an 'employee'. However, whether or not an individual is classed as an employee can sometimes be difficult to determine. This chiefly depends on the existence of a 'mutuality of obligations' - essentially, the obligation on an employer to offer work and the obligation on an individual to accept it. Other factors used to determine employee status include whether an individual has been expected to carry out the work personally, and whether the employer has had sufficient control over the way the work was done.

In a case where an organisation has provided work on a regular basis through a 'zero hours' contract and the worker has always accepted this work, it would suggest that there have been mutual obligations in respect of providing and accepting work. However, in a situation where the worker has gone for several weeks at a time without being offered work, or without taking the offer of work, or where the work was performed on occasion by a substitute, then this would not necessarily be the case.

It's essential to establish the start of any individual's period of continuous employment when they begin working for you. Many statutory rights are dependent on accruing a certain period of continuous service, such as the right to claim for unfair dismissal, the right to statutory maternity pay and the right to request flexible working. Employers are required by law to provide all employees with a written statement of their terms of employment within two months of their starting work, and this statement must specify the date on which their employment began.

Acas offers training in drawing up contracts for staff, including what to include in a written statement, how to approach potential changes to terms and conditions, managing lay-offs and terminating contracts.

Visit the Acas training and business solutions section for more information.

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