Continuity of Employment

[Thanks to Keira Gore of Outer Temple Chambers for preparing this case summary]

Does continuity of employment start from the date upon which an employee undertakes activities for an employer or, where later, the date upon which the employee's work under the contract of employment begins?

The latter, said the EAT in Koenig v The Mind Gym. Langstaff P (sitting alone) held that for the purposes of calculating continuity of employment, work outside a contract of employment cannot count. However, determining what work falls under a contract of employment is a matter of fact and degree

In that case, the Claimant was dismissed by the Respondent on 29 September 2010. Her written contract of employment provided that she had started work on 1 October 2009, which meant that she lacked sufficient continuity of service to bring an unfair dismissal claim. She appealed to the EAT on the basis that she had sufficient continuity of service by virtue of the fact that she had attended a meeting with a client of the Respondent on 29 September 2009 which should have been regarded as work under her contract of employment

The EAT dismissed the appeal, holding that the employment tribunal was entitled to conclude that there was no contract of employment operating on the 29 September 2009 because the Claimant was not obliged to attend the client meeting, she was not there in a capacity as an employee of the Respondent, she was not paid for her attendance, and she went to the meeting entirely of her own choice.