Posted by Natalie Birrell (PR Consultant),
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Continuity of employment
In Koenig v The Mind Gym the EAT has held that, for the purposes of calculating continuity of employment, work done outside the contract of employment cannot count. However determining what work falls under the contract is a matter of fact and degree.
The Claimant’s Contract of Employment stated that she started work on the 1st October 2009 and she was dismissed on 29th September 2010. Consequently she was held to have insufficient service to bring a claim. She claimed that she should have sufficient continuity of service on the basis that, on 30th September 2010, she attended a meeting with a client of the Respondent which she contended should have been regarded as work under her Contract of Employment.
The EAT upheld the Employment Tribunal decision, which was that there was no Contract of Employment in operation on the 29th September 2009 because she was not obliged to attend the meeting, was not present in the capacity of an employee, was not paid for her attendance and attended entirely at her own choice. She was invited, and chose, to attend. She was not required to do so. The EAT undertook a review of both statutory construction and the cases in relation to continuity of employment and what constituted work done under a Contract of Employment and work done outside.
However, interestingly, nowhere in the judgement does it refer to the statutory notice period of 1 week which should be added on to the period of employment from the termination date which in this case would have taken the employee over the time limit of one year to bring a claim. The judgment does not indicate whether or not she was given notice which expired on the 29th September but in any event no mention of this statutory point appears in the judgement.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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