Claims for unfair dismissal are notoriously tricky areas of employment law. The Employment Rights Act 1996 (ERA) protects employees from being dismissed unfairly, provided that they have been continuously employed for at least two years prior to the dismissal. However, defining ‘two years’ isn’t always as easy as you might think.
A start date is generally regarded as the day that an employee begins contracted work for an employer, and is defined as such by the ERA. The actual start date should match the one shown on the contract of employment. So far, so good. But what happens if an employee has worked for an employer unofficially prior to that date?
The Employment Appeals Tribunal (EAT) ruled on just such circumstances recently, in R O’Sullivan v. DSM Demolition Ltd. In this matter Mr. O’Sullivan had been employed by DSM Demolition under a contract that began on 2nd November 2016, but he had worked for them informally the preceding week. When Mr O’Sullivan later claimed unfair dismissal against DSM, DSM disputed whether his start date had been 26 October 2015, the date that he first did some work for them, or 2nd November 2015, the start date on his contract. It was a crucial point, because it meant the difference between whether he could legitimately claim unfair dismissal or not.
The initial tribunal decided that the work Mr O’Sullivan did in the first week was unofficial. He was not contracted for it, he wasn’t on the payroll, he didn’t complete a worksheet, DSM’s client was not charged for the work he did and he was paid in cash. Taking that together with his contract’s having a start date of 2nd November, the tribunal concluded that he had spent a week working, in effect, as a subcontractor. His claim for unfair dismissal was thus deemed ineligible and Mr O’Sullivan took the matter to the EAT.
The EAT upheld the original tribunal ruling, and cited the start date of the contract as particular evidence of the intentions of each party at the time. This should be of encouragement to employers who find themselves in this position, but it will be important to note that each case will need to be judged on its own merits and there is no hard and fast rule that covers everything. So employers should be extremely careful when drawing up contracts with new employees who have worked in some capacity prior to the official start date.
Where possible, unofficial work prior to the start date of a contract should be avoided. Where that is not possible, or desirable, then at the very least there should either be some form of written confirmation that this does not count towards a period of continuous service, or even perhaps a break between that work and the start date of a contract. Whatever the case for an individual set of circumstances, the important thing is to avoid those grey areas that can loom so large if, down the line, something goes wrong.