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.
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.
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, employers 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 employer should check the employee has the requisite period of continuous service and is eligible to bring the claim.