Continuous employment: working before start date

O’Sullivan v DSM Demolition Ltd

Work carried out before a formally agreed start date may not count for continuity of employment purposes.

Continuous service is relevant where a qualifying period of employment is required to bring a claim, e.g. two years’ employment to bring an unfair dismissal claim. Pinpointing an employee’s start date is usually straightforward - s. 211(1)(a) of the Employment Rights Act 1996 provides that the period of continuous employment begins ‘with the day on which the employee starts work’ - typically the start date of work under the individual’s contract of employment. But what happens where someone carries out some work for their employer before their formal/contractual start date?

Background

Mr O’Sullivan worked for DSM as a demolition safety supervisor. When he was dismissed by letter on 20 October 2017, he brought an unfair dismissal claim, asserting that he’d started work for DSM on 26 October 2015 so, when adding on his one week’s statutory notice in order to ascertain his length of service, this gave  him the requisite two years’ service. DSM argued that he had in fact started work for them on 2 November 2015 and thus didn’t have enough qualifying service to bring a claim.

Mr O’Sullivan’s contract of employment recorded a start date of 2 November and he first appeared on DSM’s payroll from that date. However, he’d done some work on DSM’s site in the week of 26 October 2015 and was paid cash in hand. He also attended DSM’s premises for a uniform and mask fitting and had done his health and safety registration. A tribunal held that his start date for continuous employment purposes was 2 November. Mr O’Sullivan appealed.

EAT decision

The appeal was dismissed.

The EAT held that the tribunal had been entitled to find the work performed in the week of 26 October was ‘unofficial’, based on the evidence:

  • Mr O’Sullivan was not paid at DSM’s rate for the work carried out
  • DSM’s client had not been charged for Mr O’Sullivan’s work in that week, and
  • Mr O’Sullivan was not put on the payroll for the week of 26 October and he did not fill out time sheets

As a previous EAT decision had stated ‘work outside a contract of employment, though it might have some relationship to it, cannot count. At times it may be difficult to see precisely where the dividing line is. That is the task of the Employment Judge’.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2020/0257_19_1505.html

Comment

These cases will always turn on the individual facts of the case and on this occasion the tribunal concluded that he was not employed, and this was not something the EAT could or would interfere with.

It is also a useful reminder that when considering length of service for the purposes of bringing a tribunal claim, an employee is entitled to add on their one-week statutory notice. In this case the effective date of termination for calculating if he had been employed long enough was 27 October (20 October plus his one week’s statutory notice). It is for this reason that employers should not leave termination so close to the two-year anniversary.