Veitch Penny LLP - Exeter | Crediton, Devon

Case

John Smith v International Development Company Plc

Issues

1. Unfair dismissal - continuous service
2. Date when work started - Section 211(1)(a) of the Employment Rights Act 1996.

Facts

This was an Appeal by the Employee from a decision of the Industrial Tribunal that lacked jurisdiction to hear this complaint on the basis that he had not worked for the Respondent for the one year statutory period.

The Tribunal had held that the employee had been employed from 1st February 2000 to 15th January 2001, notwithstanding that he had carried out activities in relation to his new post prior to the 1st February 2000.

The employee maintained that under the case of Salvation Army v Dewsbury (1984) ICR498 the phrase "starts work" under Section 211(1)(a) Employment Rights Act 1996 meant "starts work" in the vernacular sense and that he had started work prior to the 15th January 2000 on account of some of the work he did being consistent with the performance of his duties under the contract of employment that was subsequently signed.

Decision

It was held by the Employment Appeal Tribunal that the day on which he "started work" within Section 211(1)(a) of the 1996 Act had to mean "started work under the relevant contract of employment" as opposed to those who worked as voluntary workers or in self employment. This could not be earlier than the beginning of the contract and it was thought that some of the reasoning in Dewsbury might no longer be valid as Schedule 13 Employment Protection (Consolidation) Act 1978 (to which it had referred) had now been repealed. The EAT did hold that "starts work" was intended to refer to the beginning of the employee's employment under the relevant contract. Dewsbury did not therefore assist the Tribunal were therefore correct in coming to the finding that they did.

The Appeal was therefore dismissed.

Comments

Comments

It is clearly important for both employers and employees alike to ensure that the contract of employment stipulates the date from which "continuous employment" began, and obviously for a contract of employment to be put in place as quickly as possible so that both parties know exactly where they stand.

The one year continuous service period that applies for protection under the Act now, formerly used to be two years.

If an employee has not completed one year's service under his Contract of Employment, he will not be able to make any claim for unfair dismissal to the Employment Tribunal, although he will still have his rights and remedies under contract for wrongful dismissal if this can be established which would be fairly minimal.