O'Sullivan v DSM Demolition Ltd

For continuity of employment, the period begins when the employee starts work under a contract of employment with the employer concerned. Work which is related to anticipated employment, but is performed outside such a contract, does not count.

Whether pre-start activity is work under the contract is a fact-sensitive evaluation. A tribunal may consider the parties’ arrangements, payment and payroll records, work records, invoicing, and the employee’s conduct. An appellate court will not interfere where the tribunal has correctly directed itself and has reached a permissible, adequately reasoned evaluative conclusion.

The Claimant was dismissed after working for the Respondent as a demolition safety supervisor. The Employment Tribunal dismissed his unfair dismissal claim because he lacked the two years’ continuous employment required for that claim. It found that his employment began on 2 November 2015, rather than during the preceding week.

The Tribunal accepted that he had done work at the Respondent’s Derby site in the week beginning 26 October 2015. It found, however, that this was unofficial work paid in cash by another worker, outside the Respondent’s payroll, worksheet and client-invoicing arrangements. The Claimant appealed, alleging an error in fixing the start date and inadequate reasons.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the Claimant’s employment with the Respondent began on 2 November 2015. The earlier work did not count towards continuity under section 211(1)(a) of the Employment Rights Act 1996.

2. Continuity is a statutory construct. The relevant question is when the employee started work under a contract of employment with the employer against whom the claim is brought. Contract formation and the start of work may occur on different dates. Neither depends on provision of a written statement of terms. A planned start date may also be brought forward by agreement.

3. Koenig v Mind Gym Limited was correctly understood as distinguishing work performed under the relevant employment contract from activity outside it, even where that activity relates to anticipated employment. The inquiry depends on an evaluation of all the circumstances and is one of fact and degree. Observations about significant activity benefiting an anticipated employer identify potentially relevant features; they do not displace the tribunal’s evaluative task or create an exhaustive test.

4. The Tribunal permissibly relied on the contemporaneous statement recording a 2 November start date, the commencement of payroll and worksheets from that date, the absence of client invoicing for the previous week, cash payment of £100 by another worker, and the absence of a complaint that the Respondent owed wages for that week. Those matters supported its conclusion that the earlier work was unofficial and was not done under a contract with the Respondent.

5. The Tribunal did not need to identify every detail of the arrangement under which the earlier work was done, or any other contracting party. Its findings were sufficient and its reasons explained why the Claimant lost. Both grounds of appeal failed.

• Employment Appeal Tribunal: dismissed the appeal and upheld the Employment Tribunal’s dismissal of the unfair dismissal claim for insufficient continuous employment.
• Employment Tribunal: at a preliminary hearing, held that the Claimant did not have two years’ continuous service and dismissed the unfair dismissal claim. It also dismissed disability discrimination claims, which were not pursued on this appeal.