When a business is transferring from one employer to another, or where there is a change in service provider, the Transfer of Undertakings (Protection of Employment) Regulations 2006 – commonly known as TUPE – apply to protect the employment of those employees who are affected by the changes.
TUPE comes from the Acquired Rights Directive, a European Directive which requires Member States to implement legislation to cover “any person who, in the Member State concerned, is protected as an employee under national law”. When the government drafted the TUPE Regulations, it defined an employee as being any individual who works under a contract of employment or apprenticeship or otherwise, but excluding self-employed individuals.
In the recent case of Dewhurst v Revisecatch Ltd t/a Ecourier & others, an Employment Tribunal was asked to consider whether the phrase “or otherwise” captured workers.
Workers are those who are engaged under a contract to provide work or services personally, but cannot be said to be running their own business as a self-employed individual. You will know from our recent case reports on worker status that many individuals, in particular those working in the gig economy, are asserting themselves as workers in order to gain some employment protection (such as the right to paid holiday).
In Dewhurst, the claimants were couriers and an earlier Tribunal hearing had declared them to be workers. They were pursuing claims for unpaid holiday, failure to inform and consult under TUPE, and detriment for making use of trade union services. At the most recent hearing, Employment Judge Joffe was tasked with determining whether TUPE applied to the claimants as workers.
EJ Joffe carried out a detailed analysis of the legislation and case law, and concluded that workers did fall within the definition of ‘employee’ under TUPE, finding that:
The Acquired Rights Directive protects those whom our domestic employment law recognises as employees. It may be that it should properly be construed as encompassing all those…as falling within ‘all the employment statuses which receive legal recognition’ … I find that ‘employment relationship’ in the Acquired Rights Directive is properly to be read as embracing this class of working person. These are individuals whom our domestic law protects under the label ‘employees’ under the Equality Act 2010 and as ‘workers’ under other legislation.
As a first-tier decision, it is not binding on other tribunals or courts, so it remains to be seen whether this decision becomes embedded in our case law. In the meantime, businesses engaged in the transfer of employees under TUPE should be mindful of this decision and implement appropriate safeguards to protect themselves from any similar claims.
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