TUPE covers 'workers'

Dewhurst v Revisecatch Ltd t/a Ecourier

In a potentially very significant departure from accepted orthodoxy, a tribunal has held that TUPE applies to ‘workers’ as well as to traditional ‘employees’

The protections afforded by the Transfer of Employment (Protection of Employees) Regulations 2006 (TUPE) apply to ‘employees’. However, the definition of ‘employee’ in TUPE, reg. 2(1) differs slightly from that in the Employment Rights Act 1996. ‘Employee’ is defined for TUPE purposes as ‘any individual who works for another person whether under a contract of service or apprenticeship or otherwise but does not include anyone who provides services under a contract for services’ (emphasis added).

By contrast, an individual who is not engaged under a contract of employment is a ‘worker’ - a so-called ‘limb (b) worker’ - for the purposes of other statutory protections under s. 230 of the Employment Rights Act 1996 if the individual works under ‘any other contract, whether express or implied and (if its express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual’.

Background

Three cycle couriers brought claims for holiday pay and failure to inform and consult under TUPE. As a preliminary issue the tribunal had to determine the TUPE definition of ‘employee’ covered limb (b) workers such that they were entitled to TUPE protection.

Tribunal decision

The tribunal held that TUPE applies to limb (b) workers as well as traditional ‘employees’. It did this via an interpretation of EU law (the Acquired Rights Directive which TUPE implements) and by holding that the words ‘or otherwise’ in the TUPE definition of ‘employee’ were wide enough to bring limb (b) workers within its scope.

Link to judgment: https://www.bailii.org/uk/cases/UKET/2019/2201909_2018.html

Comment

This is only a tribunal decision and is not binding. There have, as yet, been no appeal decisions on this point. However, an appeal in this case seems likely.

If upheld on appeal, the implications for those managing a TUPE process will be significant. Workers as well as employees would automatically transfer under TUPE and employers would have to inform and consult workers about a transfer in the same way they do with employees.