Employee unable to bring unfair dismissal claim for sake of a week

Timing can be crucial in court and tribunal cases as shown in a recent case in which an employee was unable to bring an unfair dismissal claim for the sake of one week.

The case involved Mr R O’Sullivan V DSM Demolition Ltd (2020).

O’Sullivan had been employed by DSM as a demolition safety supervisor. Following his dismissal on 27 October 2017, he brought an unfair dismissal claim. He asserted that he started work on 26 October 2015, meaning that he had two years’ continuous employment under the Employment Rights Act 1996.

The date was crucial because he needed a minimum of two years’ employment to be able to bring a claim.

The tribunal found that the start date for his contract of employment was 2 November 2015, and that he did not have two years’ continuous employment.

It held that although O’Sullivan had worked in the week of 26 October 2015, it had been “unofficial” work outside a contract with the employer: his status was as a sub-contractor or extra pair of hands and he had been paid in cash by one of the other workers.

The Employment Appeal Tribunal upheld that decision. It said the evidence showed that O’Sullivan’s work in the week of 26 October 2015 was not done under a contract with the employer, and therefore did not count when determining his start date.

He was not put on the payroll for the week of 26 October, did not fill out work sheets, was not paid at the £12 hourly rate, and was paid in cash. DSM had not put O’Sullivan on the payroll, required him to fill out work sheets and applied the hourly rate to him until 2 November.

His work in the week beginning on 26 October had therefore been “unofficial” work, which was not done under a contract of employment.

If you would like more information about the issues raised in this article or any aspect of employment law please contact Joanne on 01228 585723 or click here to send her an email.

By Joanne Stronach Director and Head of Employment & HR.