A music teacher who ended up on a zero hours contract after his employment was transferred from a local authority to the private sector has scored a legal victory of importance to all fixed-term contract workers (Services for Education [S4E Limited] v White and Another).
Mr White had worked as a sessional music teacher for Birmingham Music Service (BMS), which was part of the council, for more than a decade under a series of contracts which expired annually at the start of the school summer holidays. He had no guarantee of work from year to year but had an expectation that his contract would be renewed. His last contract ended on 31 July 2013 and BMS was transferred to a private company, S4E, on 1 September that year. The council had been advised that Mr White was a casual worker, not an employee, so asserted that his employment was not protected by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).
S4E offered standard zero hours contracts to the sessional teachers. Mr White did not return the contract but worked for S4E under the standard terms.
He then launched Employment Tribunal (ET) proceedings against the council and S4E, claiming unfair dismissal and arrears of holiday pay. He argued that he had been dismissed by S4E and re-engaged on different terms. That claim depended on whether he was employed by the council at the date of the transfer notwithstanding the prior expiry of his contract. S4E argued that he was not employed immediately before the transfer took place so Regulation 4 of TUPE did not apply. Mr White claimed that his continuity of employment was preserved under Section 212 of the Employment Rights Act 1996 (ERA).
The ET ruled in his favour on that issue. He was therefore entitled to be employed by S4E on the same terms and conditions as before.
The ET also found that the transfer could not be viewed as a single, instantaneous transaction. It had been planned for some time, the original intention being that the transfer would be completed by September 2012, and it had been envisaged that Mr White and others in the same position would continue to work for the company on the basis of annual contracts.
In dismissing S4E's challenge to the ET's ruling, the Employment Appeal Tribunal ruled that the ET had erred to the extent that it found that Mr White could rely on Section 212(3)(b) of the ERA to tide him over the gap in his contract as Section 218(1) clearly prevents this. However, this error was immaterial if the ET's decision that the latest date when he was employed by the council was a date during 'the time of the transfer'. The EAT rejected S4E's submission that this was time spent on preparations in furtherance of the transfer rather than the transfer itself. In its view, the transfer process commenced before Mr White's dismissal by the council and he was therefore an employee at the time of the transfer.