Determining local authority continuous employment

This article looks at the factors that local authority employers should take into account when determining employees' continuous service.

Associated employers

That local authorities are not "associated employers" was confirmed by the Court of Appeal in Gardiner v London Borough of Merton [1980] IRLR 472 CA. It said that where an individual leaves the employ of one authority and joins another they will lose all rights of continuity of employment except for those that may be provided for under the Redundancy Payments (Continuity of Employment etc) (Modification) Order 1999 (SI 1999/2277).

Redundancy Payments Modification Order

The Redundancy Payments (Continuity of Employment in Local Government etc) (Modification) Order 1999 (SI 1999/2277) (generally referred to in local government as the Modification Order) provides that, for mainstream local government staff, continuous service within local government and with a number of other prescribed associated bodies (eg the National Park Authorities and some Regional Development Agencies) shall be taken into account in respect of entitlement to and calculation of a redundancy payment. Statutorily there are, however, no other rights that a local government officer carries with them from one local authority employer to another.

Guidance on the Modification Order (including advice about the bodies covered by it) can be found on the Local Government Association website.

Continuity provided under the National Conditions of Service

Although there is no statutory continuity of employment (except as regards calculation of redundancy payment entitlement) when staff move from one local authority to another, the Conditions of Service negotiated in the National Joint Council for Local Government Services provide for some continuity in respect of specific rights. These are set out in para.14 of part 2 of the National Joint Council for Local Government Services - National Agreement on Pay and Conditions of Service (the Green Book). Under the provisions, service for the purpose of calculating:

  • annual leave;
  • entitlement to sick pay;
  • entitlement under the occupational maternity scheme,

"follows" employees from one authority to another if there is no break in service.

These rights also pertain if an individual who was transferred under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) to a non-local authority employer returns voluntarily to local authority employment without a break in employment. This provision is subject to the return to service being within five years of the original transfer. However, such a return does not count for the purposes of continuity of employment for the calculation of redundancy pay.

The Green Book also provides that where an employee returns to local government service after a break for maternity reasons or for reasons connected with caring for children or other dependants, the employee will be entitled to have previous service taken into account for the purposes of the sick pay and maternity schemes. This provision is subject to the break being no more than eight years and the employee's entering into no other paid full-time employment during that period.

Industrial disputes

The National Joint Council for Local Government Services - National Agreement on Pay and Conditions of Service (the Green Book) does not specify how occupational benefits such as sick pay and annual leave should be treated where a strike has occurred. In instances where there has been a strike that has been settled nationally, the settlement has covered these points. Where a strike is a purely local issue its effect on the strikers' continuity of service for the purposes of entitlement to sick leave, annual leave, etc should be considered as part of any settlement to the dispute.