Search

How can we help?

Icon

Unofficial work before start date not counted towards continuous employment

In O’Sullivan v DSM Demolition Ltd, the Claimant’s contract of employment recorded a start date of 2 November 2015, and he first appeared on the Respondent’s payroll and worksheets from this date.

However, the Claimant had completed some work for the Respondent in the week commencing 26 October 2015 and received £100 cash in hand from an employee of the Respondent for this work.

Following his dismissal on 27 October 2017, the Claimant alleged he had been unfairly dismissed, but it was held that he did not have sufficient service to bring the claim.

The Claimant appealed on the grounds that his employment had started on 26 October 2015, not 2 November 2015 as the ET had found.

This case highlights the importance of a clear start date when bringing claims to the ET.

The EAT dismissed the Claimant’s appeal and held that the ET had been entitled to find the work performed in the week of 26 October was “unofficial”, based on the documentary evidence above, the fact the Claimant was not paid the £12/hour rate for this work, and the fact the Respondent’s client had not been charged for the Claimant’s work in that week.

This case highlights the importance of a clear start date when bringing claims to the ET.   It is important to be aware that employers agreeing to ‘off the books’ working without tax and national insurance properly deducted and paid risk very substantial penalties.

Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

Author profile

About this article

Read, listen and watch our latest insights

Pub
  • 07 May 2026
  • Employment

Employment Rights Act 2025: Key Changes for Employers

Join Katie Glendinning and Lucy White for a live webinar as they break down the key changes introduced by the Employment Rights Act 2025, offering clear insights into what these reforms mean in practice for employers and HR professionals.

art
  • 07 May 2026
  • Public Procurement

What the First Procurement Act 2023 Judgment Means for Automatic Suspension

It has been more than a year since the Procurement Act 2023 (PA23) came into force in February 2025, and the long wait for the first High Court judgment on the Act to be published is finally over.

art
  • 06 May 2026
  • Corporate and M&A

Community Interest Companies – What do you need to know?

This article seeks to provide an overview of the CIC structure’s key characteristics, the types of enterprises it suits, and some practical tips on the application process.

art
  • 06 May 2026
  • Privacy and Data Protection

Use of Personal Devices at Work: Why a Bring Your Own Device Policy is Essential

If you have employees who bring their own devices into the workplace and use said devices to deal with company data, you may want to consider a Bring Your Own Device (“BYOD”) policy.

art
  • 29 April 2026
  • Privacy and Data Protection

UK Data Protection – what’s new?

Having come into force on 19 June 2025, it comes as no surprise that we are now seeing the effects of the Data (Use and Access) Act 2025 (‘DUAA’). This article highlights a few of DUAA’s fundamental reforms, delves into one in particular, and examines how this will impact the recruitment sphere.

art
  • 29 April 2026
  • Employment

Employment Rights Act: Changing key contract terms will be harder from January 2027

The Employment Rights Act 2025 (“ERA 2025”) introduces a new regime that restricts how employers can change certain core contractual terms, with the key provisions now expected to commence on 1 January 2027.