When Did My Employment Start?
At first glance, this may appear to be a simple question – but is it the start date listed in the contract, is it the employee’s first day in the office, what if an employee attends a social function before their start date, or a client meeting, what if the start date is a Saturday and the employee only works weekdays? The start date is important because many employment rights are dependent upon an employee’s length of service, including the right to claim unfair dismissal.
An employee who started work on or after 6 April 2012, now requires two year’s service before they have the right to sue for unfair dismissal. Under the old rules, only one year’s service was required. In the recent case of Koenig –v- Mind Gym Ltd UKEAT/0201/01 the Employment Appeal Tribunal (EAT) considered whether Miss Koenig’s continuous employment ran from the date on which she attended a client meeting, or the later date listed in her contract of employment.
Miss Koenig signed a contract on 14 August 2009 giving a start date of 1 October 2009. However, Miss Koenig attended a team meeting on 14 September 2009 and a client meeting on 29 September 2009. Both of these meetings pre-dated the start date listed in her contract.
Miss Koenig was dismissed on 29 September 2010; her employer believed it was safe to do so, on the basis that her start date was listed as 1 October 2009 – giving her less than one year’s service. Miss Koenig brought a claim for unfair dismissal arguing that her employment actually commenced on 29 September 2009 – the earlier date on which she attended the client meeting.
Miss Koenig was not paid for attending the meeting and she accepted that her employer had informed her that it would be “useful” to attend rather than requiring her to attend.
The EAT ruled that attending the meeting on 29 September 2009 had not been done “under a contract of employment”, that Miss Koenig’s employment commenced on 1 October 2009 and that she did not have the requisite one years service, necessary to bring a claim for unfair dismissal.
This decision is consistent with the earlier decision in General of the Salvation Army –v- Dewsbury [1984] ICR498. In that case, Mrs Dewsbury accepted a full-time teaching post which listed the start date as the 1st of May. The 1st of May happened to be a Saturday, which was followed by a Sunday and a Bank Holiday Monday. This meant that the first day that Mrs Dewsbury actually attended work was the 3rd of May. Mrs Dewsbury was dismissed on 30 April the next year, and her employer attempted to argue that she did not have the requisite service, because her first day of work was not until the 3rd of May. The Tribunal came down in favour of Mrs Dewsbury confirming that her employment commenced on the 1st of May, giving her 365 days service.
The two cases are consistent in that the start date listed in the contract of employment is the relevant date for the purposes of calculating length of service. However, it seems strange that the EAT ruled that Miss Koenig was employed for less than a year despite attending a client meeting a year before she was dismissed, while Mrs Dewsbury had a years service despite not attending work until the 3rd of May and being dismissed less than a year later - the 30th of April!
The Judge in the Koenig case focussed on the fact that Miss Koenig was not paid for attending the client meeting, and that it was entirely her own choice to attend. It is worth noting that these factors are more important than the date listed in the contract.
The case should serve as a warning to both employers and employees that it is important to clarify an employee’s start date. For any number of reasons, an employee might start work before or after the start date listed in their contract of employment. In either eventuality, it will be prudent for both parties to revisit the contract of employment and agree the correct start date.
For more information on employment law, please contact James Twine on 01752 292351 or email jtwine@wolferstans.com.