EAT confirms “unofficial” work prior to formal start date may not count towards a period of continuous employment

It is well known that employees have the right under the Employment Rights Act 1996 (ERA) not to be unfairly dismissed, provided they have been continuously employed for a period of at least two years by the date of dismissal.

Normally, pinpointing an employee’s start date is fairly straightforward. Section 211(1)(a) of the ERA provides that the period of continuous employment begins “with the day on which the employee starts work”. This will typically be the start date of work under the individual’s contract of employment.

However, in the recent case of R O’Sullivan v. DSM Demolition Ltd, the Employment Appeal Tribunal (EAT) considered whether unofficial work carried out prior to a formal start date should be counted towards the period of continuous employment. This was a crucial step as the contested start date determined whether the ex-employee had two years’ service and so could bring a claim for unfair dismissal.

Mr O’Sullivan entered into an employment contract with DSM Demolition under which he began work on 2 November 2015. However he had done some work on DSM’s site in the week of 26 October 2015. Mr O’Sullivan claimed his employment began on this earlier date even though he was not put on DSM’s payroll until 2 November 2015. It appears he was paid cash in hand by one of the workers on site for the earlier work and DSM’s client was not charged.

In their judgment, the EAT held that the tribunal at first instance was entitled to conclude that Mr O’Sullivan had worked in the week of 26 October 2015 under an “unofficial” arrangement, and not under a contract of employment. The fact that Mr O’Sullivan was in effect a subcontractor for the week of 26 October 2015 was an important factor. On that basis the EAT concluded that the tribunal had not made an error in deciding he did not have the required service to bring an unfair dismissal claim. While the start date in the employment contract was an important consideration for the EAT as an indication of the parties’ intentions,

The case lends some guidance to the statutory test under the ERA, however it is important to recognise that each case will always hinge on its own facts.

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Tom Fancett

About Tom Fancett

Tom has experience acting for both employers and employees, advising on the full spectrum of contentious and non-contentious matters. His experience includes advising on large commercial transactions, including redundancy and TUPE issues; undertaking buy side and sell side due diligence exercises into the employment aspects for multiple commercial transactions; coordinating multijurisdictional projects; defending Employment Tribunal claims in relation to unfair dismissal, disability and sex discrimination and whistleblowing; advising on day-to-day HR and disciplinary issues; drafting and negotiating settlement and service agreements; and reviewing company handbooks and template employment contracts.

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