Continuous employment: agency/short contract workers and casual employees
If an employee has worked for an agency in each of the 26 weeks into the QW/MW, they satisfy the continuous employment test. A week means Sunday to Saturday. As long as some work was done during any week, it counts as a full week.
There may be complete weeks when an employee is not working for that agency. This does not necessarily mean that continuity of employment is broken.
Employment is not broken if:
- the agency was unable to offer the employee work in any particular week,
the agency did offer work, but the employee was not available because of
- paternity leave
- adoption leave
- parental leave
- paid holiday.
If there was a complete week (Sunday to Saturday) in which the employee did no work, the agency might regard the employment as broken without considering why they were not doing any work for them. If the employee questions the decision, they must explain any periods of absence. The agency should then reconsider the continuous employment question.
No employment in the QW
The employee can still be treated as employed in that week if:
- the agency had no work for her in that week, and
- they were available for work after the QW/MW/ONW, if the agency had work for them, and
- they did further work for the agency before starting maternity leave.
If an employee had intended to go on working during and after the QW/MW but was unable to do so because of sickness, they can still be treated as having worked into the QW/MW if they resume work with the agency within 26 weeks of stopping work.
This may mean that no decision on SMP/SAP can be made until the employee re-registers with the agency after the baby is born or the child is adopted.
If a woman has stopped looking for work through a particular agency before the start of the QW/MW/ONW, she is not entitled to SMP/SAP from that agency.
Although an agency worker is not on maternity/adoption leave, as such, when they are getting SMP/SAP, they must still give notice of the start of date they expect their employer to pay SMP/SAP. See SPM120400 andSPM130400.
Short contract or casual employees
Some employees can satisfy the continuous employment test even if they work only as and when required. Supply teachers, for example, may not actually work each week but do so when and where the need for their service arises.
Breaks between such spells of work do not necessarily mean that the continuous employment test cannot be satisfied.
Generally the same rules apply as for agency workers but if the employee is
- sick throughout the QW/MW/ONW, or
- not required to work during that week
they can be treated as having worked in the QW/MW/ONW. This applies even if they do not resume work before commencing her maternity absence.
Regulation 11(3A) of the SMP (General) Regulations 1986.
Regulation 33(3) of the SPP and SAP (General) Regulations 2002.