1. Introduction
Continuous service is the foundation of the statutory notice framework. The First Schedule to the Minimum Notice and Terms of Employment Act 1973 sets out detailed rules on what counts as continuous service, including the effect of absences, transfers between associated employers, and re-employment after dismissal.
This article considers the rules on continuous service, the principal exceptions, and the practical issues that arise in calculating service for notice purposes.
2. Legislation and Case Law
The First Schedule, paragraph 1 to the 1973 Act provides that service is continuous unless terminated by dismissal or by voluntary leaving. Service is not broken by lay-off, sickness, injury or industrial action.
Paragraph 2 provides that where an employee is dismissed by reason of redundancy and is re-employed within 26 weeks, the previous service is treated as continuous with the later employment for the purposes of the Act.
Paragraph 8 provides for continuity of service on a transfer of undertaking, with the period of service with the transferor counting as service with the transferee for the purposes of the Act. This is reinforced by the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. 131 of 2003).
The Labour Court in O’Donovan v Cork County Council [1967] IR 173 confirmed that continuous service is a question of fact to be determined by reference to the actual employment relationship, with breaks of less than 26 weeks generally not interrupting service.
3. Decision
The WRC will examine the employment history of the complainant, identifying any breaks, transfers or changes in employer. Where breaks have occurred, the WRC will apply the First Schedule rules to determine whether continuity is preserved.
Disputes commonly arise where the employee has been laid off and then recalled, or where the business has been sold and the employee has continued in the same role under a new employer. In these cases, the statutory provisions on continuity typically favour the employee.
Where the employer disputes the period of service, the burden lies on the complainant to establish continuous service to the threshold required, applying the First Schedule rules.
4. Takeaway
Employers should maintain accurate records of continuous service for each employee, particularly where there have been periods of lay-off, transfers between group companies, or other interruptions. The First Schedule rules typically result in continuity being preserved.
Employees should preserve evidence of their service including offer letters, payslips and P60s. Where service is contested at the point of termination, contemporaneous evidence of continuous employment is decisive.
5. Further information
This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.
6. About Crushell & Co
Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.
We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.
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