Dangers of involving new employees in activities before their official start date

Employers should be wary of involving new employees in their activities before their official contractual start date, as their employment could be treated as starting when the activities took place for the purposes of an unfair dismissal claim.

A new employee's contract was signed in August 2009, stating her employment was to start on 1 October 2009. However, during September 2009 she attended a meeting with a client of her new employer.

On 29 September 2010 she was dismissed. Her employer claimed the dismissal was within a year of her starting her employment on 1 October 2009 and could not claim for unfair dismissal. She argued that she had, in fact, started work earlier in September 2009 because she had attended the client meeting before her official start date in the contract. She was therefore dismissed after she had been employed for a year and could claim unfair dismissal.

The Employment Appeal Tribunal (EAT) disagreed with the claimant, ruling that her employment had not started in September 2009 because:

  • there had been no obligation for her to attend the client meeting;
  • she had not attended as an employee of the respondent (i.e. the employer);
  • she had not been paid to attend; and
  • she had not been obliged to attend, but had chosen to.

The EAT held that although the meeting could be treated as work, it was not work done under the contract of employment. Her contract could not therefore be treated as having started earlier than 1 October because of that work.

The period of employment required before an employee can claim unfair dismissal has been increased to two years since the events in this case took place (for employees who started continuous employment on or after 6 April 2012) but the same principles still apply under the new time limits.

Recommendation

An employer should be wary of involving new employees in its activities before their official start dates, as this could be interpreted as work carried out under their contracts. Their employment could then be treated as starting when the activities took place (rather than their official start dates) for the purposes of an unfair dismissal claim.

Case ref:

Koenig v The Mind Gym Ltd UKEAT/0201/12/RN

For more information please contact Ian Dawson at Shulmans on 0113 297 7735 or at idawson@shulmans.co.uk.