Legal Corner: Importance of clarity on dates of employment

19th Jun 2020
Legal Corner: Importance of clarity on dates of employment

As many readers will be aware, the right to bring a claim for unfair dismissal is only conferred on those individuals who have been employed for two years or more.

The question of when exactly an individual’s employment begins and ends may, therefore, be of paramount importance, as the case of Mr O’Sullivan v DSM Demolition Ltd UKEAT/0257/19/VP demonstrated.

O’Sullivan was employed by DSM as a Demolition Safety Supervisor. He was subsequently dismissed and brought a claim for unfair dismissal.

He alleged that he had been employed from October 19, 2015, to October 21, 2017 — and so just made it over the two-year period. DSM did not agree, however — they thought that he was unable to bring such a claim as he had been employed for just less than two years.

They recorded his dates of employment as being from November 2, 2015, to October 11, 2017.

A hearing was therefore convened to determine the exact dates of O’Sullivan’s employment, at which O’Sullivan and representatives of DSM gave evidence. DSM argued that O’Sullivan had commenced employment on November 2, as this was the date recorded in his contract of employment, his weekly labour sheets commenced from that date, and he was paid via payroll from that date onwards.

By the time of the hearing, O’Sullivan had conceded that his employment had not started on October 19 as he had originally claimed, but had instead begun on October 22.

This was the date that he had accepted the offer of employment and the date on which he had received his health and safety registration (which permitted him to work on-site). He asserted that from October 26, he had carried out some work on a client site for DSM – however, he also recalled that he had not been paid by DSM for that work and that an individual had paid him £100 in cash from his own pocket for helping.

The Judge decided that O’Sullivan had been employed from November 2, 2015, as evidenced by all the documents. O’Sullivan’s account of the work on October 26 was clear enough to be accepted, but it was apparent that he had not been paid by DSM for this work, and the client had not been charged by DSM for O’Sullivan’s contribution.

The Judge found that any work undertaken from October 26 to November 2 was not part of the contract of employment, but was unofficial work as an ‘extra pair of hands’ for which he was paid in cash by one of the workers.

The Judge also found that O’Sullivan was dismissed by a letter dated October 20, 2017, with an effective date of termination of October 27, 2017 (a date different to the assertions of both parties). Therefore, based on these dates, O’Sullivan had not been employed for the requisite two years, and so his claim for unfair dismissal could not proceed.

O’Sullivan appealed in respect of the conclusion on his commencement date. He argued that he had worked for DSM on one of their sites and had been paid for that work (albeit by an employee of DSM rather than DSM itself).

The fact that his contract of employment asserted that his employment began a week later was not determinative, and it was clear that his employment had in fact begun when he started working for DSM. If he had not been working for DSM, it was not clear who else he could have been working for. The appeal court disagreed.

O’Sullivan had conducted some work on a DSM site from October 26, but he had not completed any labour sheets for that week (as he had thereafter), and the money he had been paid (£100 in cash) was far less than his contractual entitlement. At no stage during his employment had he ever complained about not being paid in full for his first week of work (which one would have expected to have occurred).

Moreover, the fact that he had conducted work for DSM during that week did not mean that he must have been employed by them. It was perfectly possible for him to have worked on-site as a sub-contractor or an agency worker. Mr O’Sullivan’s appeal therefore failed.

It is clear from the facts of this case just how important it is to accurately record and reflect the correct dates for the beginning and end of a period of employment. They can be particularly significant where a specific length of service is required to bring a claim, as occurred here. Clarity from the outset can save considerable time and expense in the future.

Safia Tharoo
Barrister, 40 Bedford Row, London

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