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Did unofficial work prior to a formal start date count towards a period of continuous employment?

Not on the facts, held the EAT in Mr R O'Sullivan v DSM Demolition Ltd.

Mr O'Sullivan needed two years' continuous employment to pursue a claim for unfair dismissal against DSM Demolition Ltd. The dispute turned on his start date. DSM maintained the start date was 2 November 2015. Mr O'Sullivan claimed it was 26 October 2015.

Section 211(1)(a) of the Employment Rights Act 1996 provides that a period of continuous employment begins "with the day on which the employee starts work". This means the start date of work under a contract with the employer. An employment tribunal found that Mr O'Sullivan had done work on site in the week of 26 October 2015. But a statement of terms of employment had been drawn up with a 2 November 2015 start date. Additionally Mr O'Sullivan was not put on to the payroll until that date. It was only from that date that worksheets were completed. DSM's client was not charged for Mr O'Sullivan's work in the week of 26 October. And, finally, Mr O'Sullivan had been paid £100 in cash in hand for the week in question.

The EAT held the tribunal 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.

In Koenig v Mind Gym Limited Langstaff J 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".

Here, the tribunal had made necessary and proper findings to support its conclusion, and its decision was adequately reasoned. The result was that Mr O'Sullivan fell short of the necessary qualifying period for his claim.

Thanks to Dr John McMullen of Stone King LLP for preparing this case summary