(1)Any week during the whole or part of which an employee’s relations with his employer are governed by a contract of employment counts in computing the employee’s period of employment.
(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3)Subject to subsection (4), any week (not within subsection (1)) during the whole or part of which an employee is—
(a)incapable of work in consequence of sickness or injury,
(b)absent from work on account of a temporary cessation of work, or
(c)absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer for any purpose, . . .
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
counts in computing the employee’s period of employment.
(4)Not more than twenty-six weeks count under subsection (3)(a) . . . between any periods falling under subsection (1).
Cases considering section 212 19
[2006] EWCA Civ 102 · 24 February 2006Limits
Once each individual assignment was classified as a contract of service, the provision joined the successive periods of employment by bridging qualifying gaps. It thereby secured continuous employment despite the absence of an overarching contract (see paras [39]–[40]; [52]–[53]).
A week counted towards continuity if the worker's relations with the employer were governed during all or part of it by a contract of employment (see para [18]).
Gaps between successive contracts of service counted towards continuity because the tribunal found that the tutor's absence resulted from temporary cessations of work. That factual finding was unchallenged (see paras [45]; [52]–[53]).
The court noted that no more than 26 weeks between periods governed by contracts of employment can count as temporary cessations of work under section 212(3)(b) (see para [20]).
[2002] EWCA Civ 1852 · 13 December 2002Interprets
Applied to the Child Break agreement. Although the agreement imposed mutual obligations, its vague and contingent work terms did not constitute a contract of employment. (see heading “Contract of employment”)
Interpreted as a deeming provision bringing specified weeks outside section 212(1) into the continuous-employment calculation. (see heading “Arrangement”; Scott Baker LJ’s discussion of section 212(3)(c))
Identifies incapacity through sickness or injury as a qualifying absence outside section 212(1). It was contrasted with the more general provision in paragraph (c). (see heading “Arrangement”)
Identifies absence caused by a temporary cessation of work as a qualifying absence outside section 212(1). It was contrasted with paragraph (c). (see heading “Arrangement”)
Requires an arrangement or custom under which both parties regard the former employee as continuing in the employer’s employment for some purpose. The Child Break Scheme did not satisfy that requirement, and continuity therefore failed. (see heading “Arrangement”; Scott Baker LJ’s discussion of section 212(3)(c))
[2017] UKEAT 0301_16_2504 · 25 April 2017
The EAT explained that weeks in which the parties’ relationship was governed by a contract of employment count towards continuity. On the Tribunal’s finding of separate assignment contracts, weeks without assignments could not qualify under this subsection (see para [19]).
The EAT treated this subsection as providing circumstances in which weeks outside an operative contract of employment may nevertheless count towards continuity. It remitted the issue because the asserted basis of custom had not been properly explored (see paras [19]-[20]; [44]-[45]).
The EAT noted that weeks in which no work was offered might count under this provision, as the Employment Tribunal had accepted (see para [20]).
A finding that gaps between assignments count because the employee was regarded as continuing in employment by custom requires the Tribunal to identify the custom and explain its evidential foundation. The unsupported finding was remitted for fresh determination (see paras [44]-[45]).
1 more judgment, and what each says about section 212, are in the
case-law panel in the full Act.