Skip to content

Brought to you by

Dentons logo in black and white

UK People Reward and Mobility Hub

The latest updates in employment, benefits, pensions and immigration

open menu close menu

UK People Reward and Mobility Hub

  • Home
  • Events and training
  • Who We Are
    • Meet the team
  • How we can help

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

By UK People Reward and Mobility Team
May 28, 2020
  • Employment contracts
  • Unfair dismissal
Share on Facebook Share on Twitter Share via email Share on LinkedIn

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.

Share on Facebook Share on Twitter Share via email Share on LinkedIn
Subscribe and stay updated
Receive our latest blog posts by email.
Stay in Touch
UK People Reward and Mobility Team

About UK People Reward and Mobility Team

Our People, Reward and Mobility team in the UK advises on all aspects of employment law, both contentious and non-contentious, and covers the full range of pensions and employee benefits issues as well as all areas of immigration law.

All posts

You might also like...

  • COVID-19
  • Health and safety
  • Unfair dismissal
  • Working conditions

Key takeaways for employers from the EAT’s first decision on the fairness of a COVID-19 related dismissal

By Mark Hamilton
  • Employment contracts
  • Proposed legislative changes
  • Redundancy and business reorganisation
  • Termination
  • Trade unions
  • Unfair dismissal

Employment Rights Bill update: government response to collective consultation and fire and rehire consultation

By Laura Morrison and Alison Weatherhead
  • Atypical workers
  • Employment contracts
  • Employment status
  • Whistleblowing

Employment status of non-executive directors

By Mark Hamilton

About Dentons

Redefining possibilities. Together, everywhere. For more information visit dentons.com

Grow, Protect, Operate, Finance. Dentons, the law firm of the future is here. Copyright 2023 Dentons. Dentons is a global legal practice providing client services worldwide through its member firms and affiliates. Please see dentons.com for Legal notices.

Categories

Dentons logo in black and white

© 2025 Dentons

  • Legal notices
  • Privacy policy
  • Terms of use
  • Cookies on this site