Guide to volunteer status and continuous employment

Does the time an employee spends as a volunteer (prior to becoming an employee) count towards ‘continuous employment’ potentially entitling them to employment protection?

• Continuous employment determines whether an employee can bring certain claims such as unfair dismissal (which usually requires two years’ service) and is used in the calculation of the amount of a basic award and statutory redundancy payment.

• The period of continuous employment generally commences when an employee's contract starts and ends when it terminates. Under Employment Law legislation, an employee's period of continuous employment ‘begins with the day on which the employee starts work’. However, this can be ambiguous where the individual has worked at the organisation before becoming an employee. We therefore need to look at case law dealing with similar situations.

• The legislation was interpreted in General of the Salvation Army v Dewsbury [1984], as ‘intended to refer to the beginning of the employee's employment under the relevant contract of employment ... it is not intended to be interpreted literally as referring to when the employee first undertook the duties of the employment.’ This case referred to an instance where the individual started work after the start date of the contract, but we believe the principle should also apply where the individual has been working in another capacity (e.g. as an agency worker, an independent contractor or as a volunteer) before the start date of the employment contract.

• However, volunteer status is unique and one which must be assessed carefully especially if the employee has been volunteering with the organisation for a number of years. The case outlined below also discusses this principle.

• In the case of Koenig v Mind Gym Ltd UKEAT/0201/12, the EAT held that the question of when an employee starts work for the purposes of determining their continuous employment is a question of fact and degree. Where significant activity is performed for the employer's benefit by someone in anticipation of being in employment, it will be easy to infer that the parties had agreed that the activity would be performed under a contract. However, the activity has to be evaluated and it will be a matter of fact and degree whether that gives grounds for, or compels, the conclusion that it was done under a contract of employment. Even then, that could be a contract of employment separate and distinct from the one that the parties had previously agreed was due to start on a subsequent date. In this case, the EAT held that an employment judge had been entitled to find that an employee's continuous employment began on the date on which their contract provided they would start work. The fact that the employee had attended a meeting before that date at the employer's request did not bring their start date forward.

• In light of the above and the legal framework, we would therefore need to assess whether the employee carried out significant activity for the organisations benefit in anticipation of employment. If they did, it would be easy to infer that the parties had agreed that there would be a contractual relationship under which the activity was performed. We therefore need to take a view on whether the key indicators of an employment/worker relationship were present. Courts usually look at the practical realities versus any contractual.