Events Attended Prior To Contractual Start Date – Does This Affect Length Of Continuous Service?

An employee must have sufficient continuous service to be able to bring an unfair dismissal claim against their employer - either 1 year for employment begun before 5 April 2012, or 2 years for employees beginning on or after that date.

An employee must have sufficient continuous service to be able to bring an unfair dismissal claim against their employer - either 1 year for employment begun before 5 April 2012, or 2 years for employees beginning on or after that date.

The exact start date of employment will, therefore, be a very important factor when considering whether an employee has the requisite length of continuous service to bring a claim for unfair dismissal.

It is often the case that, prior to the start date specified on an individual’s contract, that an individual will be asked to attend events, meetings or training with their new employer. Will this affect the employee’s start date for the purposes of continuous employment?

The Employment Appeal Tribunal (EAT) has held that this will depend entirely on the circumstances of the case in question and must be approached on a common-sense basis.

In the recent case of Koenig v Mind Gym Ltd, Miss Koenig’s contract of employment provided a start date of 1 October 2009. Prior to this date, Miss Koenig attended a team meeting on 14 September and a breakfast event on 23 September.

Miss Koenig left her employment having been dismissed on 29 September 2010 (1 day short of having 1 year’s service) and sought to argue that she had sufficient service by virtue of attending the various events prior to 1 October 2009.
Miss Koenig’s arguments were dismissed. It could not be said that her attendance at the particular events in question amounted to an implied agreed variation of her contract start date. It was important that Miss Koenig was not paid to attend the team meeting, nor was it stressed as “essential” for her to attend (although useful).

In circumstances where significant activity has been performed for the employer’s benefit by someone in anticipation of being in employment with that employer, it would be easy to infer that the parties had agreed the activity would be performed under a contract.

From the above case however, it appears that attendance at ad hoc events, where attendance is not required (although encouraged) and is unpaid, will not automatically lead to a conclusion that work has started for continuous employment purposes.