Less than two years' service: conditional offer and unpaid shadowing did not count

When does employment really start?

This case shows how important the precise start date of employment can be for employees with less than two years' service. The claimant, a leisure centre attendant, was offered a job conditional on references. He did two hours of unpaid job shadowing while waiting for the references to come through. The tribunal had to decide whether that shadowing counted as the start of his continuous employment.

The tribunal applied established case law: 'starting work' means beginning work under the contract of employment, not doing unpaid activities collateral to it. Because the job offer was conditional and the shadowing was unpaid and done before references were cleared, the employment only began on his first paid shift. That meant he fell just short of the two-year qualifying period for unfair dismissal when he was dismissed.

What the employer did right

Active Northumberland was represented by counsel and successfully argued that the claimant's service was too short. The tribunal agreed, noting that the unpaid shadowing was not work under the contract. This is a reminder that employers should clearly document when employment actually begins, especially when there are pre-employment conditions.

What this means for similar claims

For employees, the lesson is clear: unpaid trial shifts or shadowing before your contract is finalised do not count towards your length of service. If you are dismissed before two years, you cannot claim ordinary unfair dismissal – though you may still have other rights if the dismissal was for a discriminatory reason or involved a breach of contract. For employers, ensuring that start dates are correctly recorded can prevent disputes over the qualifying period.