Continuous Employment: EAT holds unofficial work undertaken before an employee’s start date does not count towards continuous employment - O’Sullivan v DSM Demolition Ltd

Summary

The Employment Appeals Tribunal (‘EAT’) dismissed a Claimant’s claim for unfair dismissal on the basis that unofficial work for his employer before his formal start date did not count towards a period of continuous service. The required two years’ service for an unfair dismissal claim was therefore not satisfied.

Facts

Section 211(1)(a) of the Employment Rights Act provides that an employee’s period of continuous employment ‘begins with the day on which the employee starts work’.

The Claimant was dismissed 27 October 2017 and brought a claim for unfair dismissal against the Respondent. The Claimant argued that he was employed from 26 October 2015 and therefore had the required two year’s continuous employment needed to establish such a claim. The Respondent argued that his employment began on the 2 November 2015 which was the date stated on his contract of employment, the date he was put on the payroll and the date he began completing work sheets for his time.

The issue was whether the Claimant started employment on the 26 October 2015 or the 2 November 2015. The Employment Tribunal (‘ET’) found that the Claimant had worked for the Respondent for the week beginning 26 October 2015 although the client was not charged for his work during this week and the Claimant was paid by cash for his work during this time. He had therefore been working under an unofficial arrangement and not under a contract of employment with the Respondent for that week. The Claimant appealed.

Decision

The EAT dismissed the appeal and upheld the decision of the ET who was entitled to find that work performed prior to 2 November 2015, was unofficial. The ET had correctly relied on the case of Koenig v Mind Gym Limited which drew a distinction between work done under a contract, and work that is merely collateral to it.

The EAT held that the ET had made proper findings to support its decision and adequately concluded why the work done by the claimant from the week of 26 October 2015 was not done under a contract of employment with the Respondent. The ET relied on evidence that the Claimant was not put on payroll for this week, did not fill out work sheets, was not paid his usual hourly rate, was paid in cash and that the Respondent’s client was not charged for work done by him in that week. It was therefore fully entitled to conclude that the Claimant's work that week was "unofficial" work which was not done under a contract with the Respondent.

Implications for employers

Despite the conclusion in this case, in which a decision was made on the facts, it is important that employers remain aware of the risk that any work completed prior to the official start date, such as training, has the potential to start the clock for the purposes of continuous employment. It is therefore essential that clear start dates are communicated to employees to avoid any ambiguity over when their employment started.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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