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When does an employee’s continuous employment start?

Perhaps unsurprisingly, the EAT has held that an employee’s continuous employment starts on the date upon which their work under a contract of employment begins, even where they have undertaken other activities for the employer prior to this.

Miss Koenig signed a contract in August 2009 that stated her employment would commence on 1 October 2009. On 29 September 2009, at her future employer’s request, she attended a meeting with a client. She argued that this meeting triggered the start of her continuous employment.

The EAT confirmed that where significant work is performed for an employer by someone who anticipates being an employee but prior to the commencement of their contract of employment, it is possible to infer that the parties have agreed a contractual relationship under which the activity is performed. In these circumstances continuous employment will be deemed to have started no matter what is written in the contract. However, in this case, the EAT highlighted the fact that Miss Koenig was only asked to go to the meeting (and not required to); was not paid to attend; and was not held out as being an employee at the meeting, which was also attended by another employee. Taking this into account, the EAT concluded that the work done on 29 September was outside the contract of employment and did not count toward continuous employment.

The case serves as a reminder that if there is any dispute about employment dates, parties should consider the factual background surrounding a new employee commencing their employment and not rely solely upon what is written in a contract.

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