Call us now 01473 688100

Start date not brought forward by employee undertaking activities prior to agreed start date

Posted on 30th May 2013
Case law

The EAT has held that an employee undertaking activities prior to the start date set out in a contract of employment will not bring the start date forward unless the activity amounted to work under the contract of employment.

On this page

Meet the author

Simon Quantrill Simon
Quantrill
Managing Partner Telephone: 01473 688100

the question was whether the activity amounted to work done under a contract of employment

Koenig v Mind Gym Ltd [2013] UKEAT/0201/12

Background

Miss Koenig (‘Miss K’) entered into a contract of employment with Mind Gym Ltd (‘the Gym’) in August 2009. The contract stated that her employment would commence on 1 October 2009. In September 2009 Miss K was invited to and attended a meeting between the Gym and a prospective client of the Gym. She was not paid or required to attend, although, the Gym told her it would be “useful” for her to go.

Miss K was dismissed on 29 September 2010. She was one day short of a year’s service which would have enabled her to bring a claim for unfair dismissal.

Miss K argued that by attending the meeting on 29 September 2009 this brought her start date forward to 29 September 2009. The employment tribunal disagreed.

Miss K appealed.

The decision

In dismissing the appeal and holding that Miss K’s attendance at the meeting in September did not bring her start date forward, the Employment Appeal Tribunal (‘EAT’) stated that the question was whether the activity amounted to work done under a contract of employment and this should be determined on the facts.

The EAT commented that the ET was entitled to conclude that there was no employment relationship in circumstances where:

  • There was no obligation on Miss K to attend the meeting in September
  • Miss K did not attend the meeting in a capacity as an employee of the Gym
  • Miss K was not paid for attending the meeting; and
  • Miss K attended entirely of her own choice.
The EAT explained that in a situation where the employee anticipates being in employment with that employer and has undertaken significant activity which will benefit the employer it will be easy to infer that the activity is performed under a contract of employment. The EAT expressed, however, that much depends on the activity that has been performed.

In practice

Employer’s should exercise caution before concluding that an employee has insufficient service to bring various employment law claims. Whilst it seems unlikely that attending functions (where the employee is not required to attend and is not paid) will lead to a finding that his or her employment commenced on the date of their attendance, each case will be determined on its facts.

To minimise the risk of employees’ continuous service being brought forward, employers should ensure that any activities that employees are asked to carry out prior to their start date are unpaid and not compulsory.

Clear, concise and accurate information for employers and HR professionals

Visit the hrlegal archive

Find out how we can help you

Click here to contact us or phone us 01473 688100

Keep your legal costs down with

Professional telephone and email advice and guidance for solving your everyday employment law and HR issues

No waffle, well written employment law updates and HR news articles, including case reports, helping employers and people managers keep up to date with what's important

Our outstanding employment tribunal litigation service for employers designed to secure the best possible outcome for a value for money cost

Fixed-cost review and benchmarking against current legislation and best practice of your employment contracts and HR policies and procedures

Bespoke contracts of employment, policies and procedures that are legally robust, protect your organisation and comply with HR best practice

Related articles