What is continuity of employment?

AuthorChris Dobbs

What is continuity of Employment?

Only employees with two years’ continuous service have the right not to be unfairly dismissed. This qualifying period is measured to the day - so it is important to be clear about precisely when an employee started work.

When does employment officially start?

In O’Sullivan v DSM Demolition Ltd, Mr O’Sullivan claimed unfair dismissal from his role as a Demolition Safety Supervisor. He said that he had been employed from 19 October 2015 to 21 October 2017. In replying to his claim however the employer said that his start date was 2^nd November 2015.

That was the date given on his written statement of terms and conditions. It was also consistent with the employer’s payroll records.

Working prior to contracts being signed

Mr O’Sullivan argued that prior to the formal start-date of 2 November 2015 he had already been working for the employer. He had, at the employer’s request, undergone a medical assessment which was a requirement of the certification he needed to work on demolition sites.

He had also undertaken some informal work for one of the employer’s clients. However the Tribunal found that he was not paid by the employer for such work – he had actually been paid in cash by the client and the employer was not involved in the transaction.

Clarity on continuity of employment

The Tribunal concluded that any work that he had done did not form part of the employment that began on 2 November. The Tribunal held that he did not have two years’ service and dismissed his claim.

Does a medical exam constitute the commencement of employment?

The EAT upheld that finding. Mr O’Sullivan’s period of employment did not begin when the contract was first agreed upon. Tasks done in preparation for the start of his employment -such as the medical examination – were not part of the employment itself.

The Tribunal was also entitled to find that the work he did on site was not work done under the contract of employment, but was separate and distinct from it.

A Specialist Employment & HR solicitor's view

Chris Dobbs, solicitor in our specialist Employment & HR Team

The start date for employment is important for both the beginning of the two years’ service requirement and the calculation of pay and benefit entitlements.

The matter can be hugely complicated where there is a difference between a factual start date and the date on a contract and it is always best to confirm an agreed start date and date of continuous employment in the employee’s statement of terms.

Furloughed staff remain employed and their length of time on furlough in whatever form will count towards continuous service.

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