Services for Education (S4E) v White UKEAT/0024/15; (2015) EMPLR 059
Employment Appeal Tribunal (EAT)
Laing J DBE
The rules about continuous employment in the Employment Rights Act 1996 provide that employment with one employer cannot normally be continuous with employment with another employer, but there are some exceptions. One exception is the transfer of the business in which the employee works. For these purposes (unlike under TUPE), a transfer of a business from one employer to another can take place over a period of time. So an employee dismissed by a transferor during the period of a transfer, who is re-engaged by the transferee after the end of that period, can treat their employment before the dismissal as continuous with that after the transfer.
W, a sessional music teacher, was employed by Birmingham City Council on a series of fixed term contracts each of which lasted for an academic year (1 September and 31 July). The Council wanted to transfer teachers to S4E. The transfer was delayed for technical reasons, including matters relating to pensions. It was completed on 1 September 2013. W’s annual contract had ended on 31 July 2013. He was offered a zero-hours contract with S4E with effect from 1 September 2013. He claimed that he should have transferred under TUPE and that the change in his terms of employment amounted to an unfair dismissal by S4E followed by a re-engagement.
The ET held that W had sufficient continuous service to bring an unfair dismissal claim. Between each fixed term contract, continuity of employment was preserved by s 212(3)(b) Employment Rights Act 1996 which preserves continuity during temporary cessations of work. The dismissal on 31 July 2013 was during the period of the transfer and so his employment with the council was continuous with his employment with S4E. He therefore had sufficient continuous service. The EAT upheld the ET's decision, saying that there is a difference between the meaning of ‘time of the transfer’ for the purposes of TUPE (which has to be a particular point in time) and for the purposes of the rules on continuous employment (where a transfer can take place over a period of time).
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