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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45291
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I worked for a charity for 6 years and after its funds were

Customer Question

I worked for a charity for 6 years and after its funds were wound down 1 3/4 years ago, I was employed by one of the trustees of the charity. Would my continuous period of service be extended by the previous 6 years. I've had no breaks in service over the two periods or between them and am now employed on the same terms and conditions as I was with the charity
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Do you have a specific question?

Customer:

My question is, with the information I have given so far, can you say whether my continuous period of service be extended by the previous 6 years work for the charity?

Customer:

To clarify, I was employed by the charity for 6 years, then by one of the trustees for 1 3/4 years

Customer:

I saw this:

Customer:

But that is Northern Ireland and it's not clear the context of "trustees or representatives"

Customer:

If you can identify relevant legislation for me that would help

Ben Jones :

OK, thank you, XXXXX XXXXX this with me - I will look into this for you, get my response ready and get back to you on here. No need to wait around and you will get an email when I have responded, thank you

Customer:

Also presumably case law would be relevant?

Customer:

Thank you very much

Ben Jones :

Thanks for your patience. You are correct that there are circumstances when an employee’s continuity of service is preserved but they are quite specific and will depend on the individual circumstances. Do not get confused with the use of the term ‘trustee’ in the examples as this does not necessarily relate to the fact that there was a trustee in this case.


 


The examples on the link you provided are a good summary so I will deal with the relevant ones below:



  • Under an Act of Parliament or Northern Ireland Assembly, one corporate body takes over from another as the employer – this is known as a transfer of a business and is covered by the TUPE Regulations (http://www.legislation.gov.uk/uksi/2006/246/made). This is likely to be the most relevant scenario to your situation and you must be able to show that the trustee had taken on the whole, or part, of the charity’s business and continued to run it as before. This is a complex piece of legislation and in the event of a dispute it could really only come down to a tribunal making a decision on whether this was a relevant transfer. Nevertheless it is the best argument you will have for continuous service.

  • There is a change in the partners, personal representatives or trustees who employ the employee – this would usually only apply if for example you are employed by a partnership, charity, etc and the partners, trustees, etc change, but the actual entity employing you (ie. The partnership or charity) remains the same. So it is when the people behind the entity change, but you remain employed in the same capacity and by the same employer. Not relevant if the charity ceases to exist and you are taken on by one of its trustees.

  • The employee moves from one employer to another when, at the time of the move, the two employers are associated employers – this would only apply if the employers are companies and either one has control over the other, or a third party has control over both of them. Not relevant here

Customer:

Thank you Ben, that's very helpful

Customer:

I am a little confused by the first scenario "Under an Act of Parliament or Northern Ireland Assembly..." - that's implies to me the change was an order of Parliament/NI Assembly?

Customer:

The situation is a bit more convoluted than I described: the charity actually still exists but is dormant. I was employed by the trustee to (in part) continue the work of the charity as before

Customer:

However, I am guessing that this could only really be resolved by an employment tribunal if it comes to that

Customer:

In effect I am still working for the charity doing the same work, but since May 2012 was paid by the trustee rather than by the charity

Customer:

I won't expect you to comment further unless it's no trouble - am giving you an excellent service rating now

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45291
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Expert:  Ben Jones replied 2 years ago.
Thank you for this, you are correct that in the event of a dispute it is only a tribunal that can make a decision - you may raise an argument with the party you believe is the employer but if no agreement is reached then all you may realistically do is challenge it by making the relevant claim in the employment tribunal.

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