Tribunal rules that workers should be classed as employees for purposes of TUPE regulations

04 December 2019

The London Central employment tribunal has ruled that Transfer of Undertakings (Protection of Employment) (TUPE) applies not only to ‘employees’ but also to ‘workers’.

In the case of Dewhurst v Revisecatch Ltd t/a Ecourier, three-cycle couriers disputed the fact that they had not been paid holiday pay and also that they had not been correctly informed, consulted and treated as working under a contract of employment for the purposes of TUPE. Under TUPE, the existing and the new employers must both provide certain information to staff and may need to consult with any employees who are affected by the transfer. The claimants advised that this had not happened when eCourier, a Royal Mail subsidiary took over their contracts from City Sprint. This potentially has significant implications and widens the scope of individuals who

The TUPE regulations define ‘employee’ 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’. The claimants argued that the inclusion of the phrase ‘or otherwise’ extends the definition of ‘employees’ to include ‘workers’. Judge Joffe commented:

“It is clear from its working that [Tupe 2006] is intended to confer rights and protections on a broader class of employees than those employed under a  contract of employment or apprenticeship as reflected in the words ‘or otherwise’.

 Applying those principles, I can properly give effect to the Acquired Rights Directive by concluding that the words ‘or otherwise’ are to be constructed so as to embrace limb b) workers.

 This interpretation does not ‘go against the grain’ of Tupe 2006, the purpose of which, in accordance with the Acquired Rights Directive, is to preserve the employment [or] labour law rights of those who work within an undertaking when that undertaking changes hands. Our ‘general employment law’ protects both limb b) workers and traditional employees, at different levels of protection, and both of these classes have their rights preserved by Tupe 2006.”

The employment tribunal outcome is not currently binding as the employers have 42 days to appeal. If there is no appeal or if the appellate courts agree with the original decision then it will mean that ‘workers’ automatically transfer under TUPE, in line with ‘employees’ and will have to be informed and consulted on TUPE transfers in the same way.

 


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