Koenig v The Mind Gym Ltd

For the purposes of Employment Rights Act 1996 section 211, continuous employment begins when the individual starts work under a contract of employment. It does not begin merely because a contract has been entered into or because the individual undertakes activity connected with a future employer.

Whether activity before the agreed start date is work under a contract is a question of fact and degree. The contractual start date is relevant, although continuous employment is a statutory construct. An Employment Tribunal may conclude that voluntary, unpaid attendance at a client meeting was not work under a contract where attendance was not required and the individual did not attend as an employee.

The claimant was dismissed on 29 September 2010. Her written contract stated that employment would begin on 1 October 2009. She therefore lacked one day of the continuous service then required to pursue unfair dismissal.

Before the contractual start date, the claimant attended a meeting between the respondent and Grant Thornton. The respondent had invited, but had not required, her to attend. The Employment Tribunal at London Central held that this attendance did not begin her continuous employment. The claimant appealed, contending that the Tribunal had wrongly treated the contractual start date as decisive rather than asking when she had actually started work.

1. Appeal dismissed. The Employment Tribunal correctly directed itself by asking when the claimant started work by reference to her contract of employment. Although the more exact statutory language is work under the contract, the difference was immaterial and did not prejudice the claimant.
2. Section 211 of the Employment Rights Act 1996 requires work done as an employee. Read with section 230, it distinguishes entering into a contract of employment from working under it. Activity collateral to the contract cannot begin continuous employment. The approach in [1984] ICR 498 was consistent with that construction.
3. The date upon which continuous employment begins is a statutory matter, and the parties cannot conclusively stipulate it. However, where the issue is whether work was done under a contract, the agreed contractual start date is relevant evidence. Earlier activity may be performed under a variation, a separate contract, or no contract of employment at all.
4. The character of pre-start-date activity is a factual question of degree. The Tribunal was entitled to find that the claimant's attendance at the client meeting was voluntary and unpaid; she was not required to attend, was not presented as the respondent's employee, and was not essential to the meeting. It could therefore conclude that no contract of employment operated on that date.
5. The finding was not perverse. Any work done on 29 September was not work under a contract of employment, so continuous employment began on 1 October 2009.

• Employment Appeal Tribunal: dismissed the claimant's appeal on 8 March 2013.
• Employment Tribunal, London Central: held that attendance at the pre-start-date client meeting did not amount to work under a contract of employment and that continuous employment began on 1 October 2009.