O’Sullivan v DSM Demolition Ltd (Jurisdictional Points – Continuity of Employment): EAT 15 May 2020

The Employment Tribunal dismissed the Claimant’s claim of unfair dismissal on the basis that he did not have two years’ continuous employment. The dispute turned on the start date. Section 211(1)(a) Employment Rights Act 1996 provides that, for these purposes, a period of continuous employment begins ‘with the day on which the employee starts work’. This means the start date of work under a contract with (subject to provisions which did not apply here) the employer in question. The Respondent’s case was that the start date in this case was 2 November 2015; the Claimant’s case was that it was 26 October 2015.
The Tribunal found that the Claimant had done work on the Respondent’s site in the week of 26 October 2015. However, it also properly found that a Statement of Terms had been drawn up with a 2 November 2015 start date, he had been put on payroll with effect from that date, and had begun completing worksheets from that date. The Respondent’s client was also not charged for his work in the week of 26 October 2015. Further, he had been paid pounds 100 in cash on site for the week of 26 October 2015, and had not complained to the Respondent about his pay.
The Tribunal correctly directed itself as to, and correctly applied, the law. Koenig v The Mind Gym Limited, UKEAT/0201/12, considered. In light of the foregoing and other factual findings, the Tribunal had been entitled to conclude that the Claimant had worked in the week of 26 October 2015 under an unofficial arrangement and not under a contract of employment with the Respondent. Its decision was also Meek-compliant. The appeal was dismissed.

[2020] UKEAT 0257 – 19 – 1505
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.650922