Does TUPE apply to workers as well as employees?
In an important decision, the Employment Tribunal has held that workers (i.e. those who meet the “limb (b) worker” test set out in s.230 of the Employment Rights Act 1996) are protected under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”).
In Dewhurst and ors v (1) Revisecatch Limited t/a Ecourier (2) City Sprint (UK) Limited, three cycle couriers brought claims for holiday pay and failure to inform and consult under TUPE.
In summary, the Employment Tribunal held that regulation 2(1) of TUPE is intended “to confer rights and protections on a broader class of employees than those employed under a contract of employment”. It said that this is reflected in the definition of “employee” in TUPE which refers to people who work under a contract of service, or apprenticeship, “or otherwise” (emphasis added). It concluded that this interpretation was compatible with the wording of the EU Acquired Rights Directive (which TUPE implements).
This is clearly an alarming decision for employers with huge ramifications for their obligations and potential liabilities under TUPE.
However, as an Employment Tribunal decision, the case is not binding and may be appealed.
You may wish to wait for the outcome of any appeal before changing your practices in relation to TUPE.
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