LawReporter
Claim dismissed Employment Tribunal · 26 July 2023

Returning to the same employer after a break: unfair dismissal claim fails for lack of continuous service

A former employee who returned to Mitie Care and Custody Ltd after a three-month break was unable to bring an unfair dismissal claim because his continuous service reset, leaving him short of the two-year qualifying period.

1 min read · Last updated 18 May 2026

Case details
  • #insufficient-continuous-service
  • #reinstatement-claim
  • #break-in-employment
  • #jurisdictional-preliminary-issue

Key facts

  • The claimant was employed from 16 August 2021 until dismissal on 8 April 2022.
  • The claimant had previously worked for the respondent from 24 March 2002 until 10 April 2021.
  • The claimant left the respondent in April 2021 to work for the prison service.
  • The claimant returned to work for the respondent on 16 August 2021.
  • The break in employment was over three months.
  • The tribunal found no agreement to preserve continuity of employment at the time of leaving.

Timeline

  1. Started employment with respondent

    Claimant commenced employment with Mitie Care and Custody Ltd (or predecessors).

  2. Left employment

    Claimant resigned to take up employment with the prison service. Received P45.

  3. Offer letter sent

    Respondent sent an offer of employment to the claimant with a start date of 16 August 2021.

  4. Returned to work

    Claimant started working for the respondent again. He was not required to complete full induction training.

  5. Dismissal

    Claimant was dismissed by the respondent.

  6. Case management hearing

    Preliminary hearing listed to determine whether claimant had sufficient service for unfair dismissal claim.

  7. Preliminary hearing

    Hearing to determine the jurisdictional issue of continuous service. Claimant's claim struck out.

  8. Judgment sent

    Reserved judgment and reasons sent to parties.

The outcome

The tribunal found that the employee did not have the required two years' continuous service to bring an unfair dismissal claim. He had worked for Mitie from March 2002 to April 2021, then left to work for the prison service. He returned in August 2021 but was dismissed in April 2022 – less than a year later. The break was over three months, and there was no agreement to preserve continuity. The claim was struck out.

No compensation was awarded as the claim was dismissed on jurisdictional grounds.

Lessons & takeaways

  • If you leave a job and later return, your continuous service may reset unless you agree with your employer to preserve it – get this in writing.
  • You generally need two years' continuous service to claim unfair dismissal; a break of more than one week can break continuity.
  • Even if you return to the same role and skip induction, that does not automatically mean your service is continuous – check your contract and any agreement.
  • If you are bringing multiple claims, ensure each claim is properly listed and that you understand the jurisdictional requirements for each.

A familiar employer, a fresh start

This case highlights a trap for employees who return to a former employer after a break. The employee had worked for Mitie Care and Custody Ltd for nearly 19 years before leaving to join the prison service. When he returned just four months later, he assumed his long service would count towards the two-year qualifying period for unfair dismissal. But the law is clear: a break of more than one week normally breaks continuity unless both sides agree otherwise.

The tribunal found no evidence of such an agreement. The employee had received a P45 when he left, and the offer letter for his return treated it as a new start. Even though he was not required to complete full induction training, that did not amount to an agreement to preserve continuity.

What the employer could have done differently

Mitie Care and Custody Ltd did not do anything wrong here – the law was on their side. But for employers, the lesson is to be clear in writing when rehiring former staff. If you intend to preserve continuity (for example, to retain seniority or benefits), say so explicitly. If not, make it clear that the employment is a fresh start.

Why this matters for similar claims

This case is a reminder that the two-year qualifying period for unfair dismissal is strictly applied. Employees who return to a former employer after a break should check whether their service is continuous. If it is not, they may need to build up two years from the return date before they can bring an unfair dismissal claim. Other claims, such as discrimination, do not have a service requirement, so employees may still have options – but unfair dismissal is a common route that can be blocked by a break in service.