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.

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.