Key Points

  • Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE): for an employee to automatically transfer from a transferor to a transferee they must be employed immediately before the transfer, which is a distinct point in time.
  • In this case the Employment Appeal Tribunal (EAT) confirmed that even if an employee has not transferred under TUPE they may still transfer to a transferee under the Employment Rights Act 1996 (ERA) so as to maintain continuous employment. Here ‘the time of the transfer’ is a more fluid concept which potentially stretches back months before the transfer actually takes place.

The Facts

From 1992 Mr White worked for the Council on contracts spanning the academic year (1 September to 31 July). In October 2011, the Council started consulting with trade unions about its proposed transfer of services to S4E but due to delays the transfer date slipped from September 2012 to 1 September 2013. Mr White was not treated as transferring under TUPEand his contract expired on 31 July 2013. He was offered but did not sign a zero-hours contract, started work at S4E and subsequently brought an unfair dismissal claim, arguing that he had been dismissed by S4E and re-engaged on different terms.

The Decision

  • Although Mr White had been employed by the Council until 31 July he was not employed immediately before the transfer (1 September) for the purposes of TUPE so he would not transfer.
  • But under ERA the court found that 31 July 2013 was a date during ‘the time of the transfer’ as matters relating to the transfer had been underway prior to that date. As Mr White was still employed at this date his continuity of service was preserved and he transferred to S4E.

Comment

Even if an employee has not transferred under TUPE because they are not employed immediately before the transfer consider whether they were employed “at the time of the transfer” under ERA and could be said to have transferred to the transferee so as to maintain continuous employment.

Services for Education (S4E Limited) v (1) White and (2) Birmingham City CouncilUKEAT/0024/15