Can New Starters Undertake Work Before Their Contract Starts?

There are a number of reasons why schools may ask new members of staff to undertake some training, have access to the systems or prepare work before their contract officially starts.

One of the potential risks of this was highlighted in the recent case of Mr R O'Sullivan v DSM Demolition Ltd which considered whether such activities would trigger the start of their continuous service.

Continuous service is relevant where a qualifying period is necessary to bring a claim. A claim for unfair dismissal usually requires the employee to have completed a minimum period of two years' continuous employment with their employer.

Under section 211(1)(a) of the Employment Rights Act 1996, the period of continuous employment "begins with the day on which the employee starts work." This is generally seen as the start date under a contract of employment.

Prior Work Not Counting

In the recent case of Mr R O'Sullivan v DSM Demolition Ltd, Mr O'Sullivan, brought a claim for unfair dismissal against his employer, DSM Demolition Ltd (DSM). DSM argued that Mr O'Sullivan was not eligible to bring a claim for unfair dismissal as he did not have the two year requisite qualifying period of continuous service at DSM. The main factor in dispute between the parties was Mr O'Sullivan's start date. DSM maintained the start date was 2 November 2015, whereas Mr O'Sullivan claimed it was a week earlier, 26 October 2015.

Mr O'Sullivan did work at the DSM site the week of 26 October 2015 as he claimed, but he was paid cash in hand by another employee, seemingly as a sub-contractor. He also attended the workplace for a uniform and mask fitting. The start date in his contract of employment with DSM was 2 November 2015, and it was only after the contract start date that Mr O'Sullivan submitted worksheets and was entered onto the DSM payroll.

It was held on these facts that the start date was the 2 November 2015 (the contract start date) and the work Mr O'Sullivan carried out in the earlier week of 26 October 2015 was considered by the Tribunal to be under an 'unofficial' arrangement. The claim for unfair dismissal was dismissed.

Practical Steps - What Schools Can Do

There is no one rule as to whether work carried out prior to a contract start date counts towards continuous service. Each case will turn on its facts, with relevant factors being the type of work that was carried out, how it was arranged and paid for. To avoid ambiguity, schools should be clear on start dates and any work or training required in advance of that. Should a claim for unfair dismissal arise, as a first step the school should check the employee has the requisite period of continuous service and is eligible to bring the claim. It is worth bearing in mind that there are also a number of unfair dismissal claims where an employee does not need to have any minimum qualifying service - such as claims connected to health and safety, whistleblowing or pregnancy and childbirth.

Where both parties consider it would be helpful for employees to have access to work systems before beginning work, we would recommend that:

• the reason for this is clearly documented
• it is set out that this does not constitute work
• consideration is also given to ensuring they agree to adhere to confidentiality and data protection policies

For further information on continuous service for your school's staff, please contact Alice Reeve in our Independent Schools team on 07741 271 363, or complete the form below.