Upon a successful recruitment process, an offer of employment and contract of employment is released to the nominated candidate. It is made clear within the documents of when the continuous employment will start. The candidate is then required to accept the role and begin on the stated date.
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 seen as the start date under a contract of employment.
However, some companies may engage with the new employee sooner rather than later in an attempt to avoid wasting time on their first day, for example setting up computer logins, mobile phones, inductions, uniform orders. The new employee may also be asked to come into work to get such matters sorted earlier. This then poses the question, if new starters start to engage with the employer earlier, does this trigger a new start date?
In the case of O’Sullivan v DSM Demolition Ltd, O’Sullivan made an unfair dismissal claim. According to his contract of employment, his employment was less than 2 years’ service but O’Sullivan claimed that he had in fact started work unofficially 1 week earlier at the request of his employer hence bringing his service to 2 years.
As a rule, any employee with over 2 years’ service can make an employment tribunal claim. The tribunal considered the circumstances and his claim and confirmed that the contractual date was correct therefore unfair dismissal did not apply.
We can all learn from this case study as not all one size fits all and different tribunal panels may think differently. It is best not to take advantage of inviting new employees in before their start date as it may lead to ambiguity to when their actual start date was and if during this time they were working.
For many, it would be helpful if the employee could have access to the work system before hand and any reading materials for information purposes. Should the new employer wish to do this, it is important that the employer sends written confirmation to the new starter that this is for information purposes and this does not constitute work.
The article is for general information purposes only and should you require any further assistance on the matter please do not hesitate to call our advice-line team on 01455 852028.
