In order to decide when a period of continuous employment has started, the law says that it is the day when the employee started work. In O’Sullivan v DSM Demolition Ltd, the Employment Appeal Tribunal (EAT) held that tribunals have to distinguish between work that started on an unofficial basis (which does not count) and work done under a contract (which does).
Following his dismissal, Mr O’Sullivan brought a claim for unfair dismissal for which he needed to show he had two years’ continuous employment. On his claim form he gave the dates of his employment as 19 October 2015 to 21 October 2017 although in his statement he put the start date as 26 October.
His former employer, on the other hand, gave his start date of employment as 2 November 2015 as this was the date given in Mr O’Sullivan’s statement of terms and conditions. It was also the date when he started completing weekly labour sheets and which was, in turn, consistent with their payroll records.
Section 211(1)(a) of the Employment Rights Act 1996 states that, in order to determine a period of continuous employment, the period begins "with the day on which the employee starts work.”
Relying on the case of Koenig v The Mind Gym, the tribunal held that the start date under section 211 is a question of fact and the date to be adopted is the date which common sense dictates on the facts.
In this case, it was satisfied that although Mr O’Sullivan had done work for DSM in the week beginning 26 October 2015, the work was not recorded on his work sheet and DSM had not charged their client for the work he had done.
It concluded therefore that the work done from 26 October was collateral to the contract and not part of it. This was because the contract of employment started on 2 November which was also the date from which the client was invoiced for the work he had done. It was also the date when he started to be paid through DSM’s payment systems. Although he had undertaken work in the week prior to 2 November, this had been unofficial and for which he had been paid £100 cash in hand.
The tribunal therefore dismissed his unfair dismissal claim.
Mr O’Sullivan appealed arguing that as he had worked for DSM in the week of 26 October under the control of the site supervisor for the benefit of DSM, it was irrelevant whether or not he had been given a written contract for that week.
Dismissing the appeal, the EAT held the tribunal was entitled to reach the conclusion that the work that Mr O'Sullivan had done in the week beginning 26 October was “unofficial” and had not been done under a contract with DSM.
The judge had properly directed himself with regard to Koenig, in particular he had been alert to the distinction between work done under a contract of employment with the employer and work that is merely collateral to it. In order to decide which side of the dividing line any given case falls, it was down to the tribunal to apply common sense, which it did in this instance.
The tribunal had properly directed itself in terms of evidence which showed that Mr O’Sullivan had not been put on the payroll until 2 November, which was when he also started to complete work sheets. This date was also consistent with the statement of terms and conditions.
The EAT therefore dismissed the appeal.
This is an eminently sensible and not entirely surprising decision by the EAT.