We have had to delay an employee’s start date to three months after the date specified in their contract due to Covid-19. When will their period of continuity of employment commence?

Article 7(1)(a) of the Employment Rights (Northern Ireland) Order 1996 (“ER(NI)O”) states that an employee’s period of continuous employment commences on the “day on which the employee starts work". However, this has been subject to interpretation in the courts because there are instances when an employee may not actually start work on the date stated in their terms and conditions of employment.

In General of the Salvation Army v Dewsbury [1984] ICR 498, the Employment Appeal Tribunal (“EAT”) held that the reference to the "day on which the employee starts work" under section 211(1)(a) of the Employment Rights Act 1996 (article 7(1)(a) of the ER(NI)O) refers to when the employee's employment begins under the contract and not when they actually started working. For example, if an employee’s contract states that they will commence employment on 15 April 2020, but they did not actually start until 20 May 2020, their period of continuous employment would nevertheless commence on 15 April 2020.

In Koenig v Mind Gym Ltd [2013] (a more recent decision), the EAT affirmed the decision in Dewsbury but recognised that the question of when an employee starts work for the purposes of determining their continuous employment is a question of fact and degree.

In Koenig, the EAT held that the employee’s start date for continuous employment purposes was the date stated in the employment contract and the date from which the employee was paid. The fact that the employee attended a client meeting with her new employer before that date did not change the start date of her employment, as this was not work done under the employment contract.