You may have seen some updates recently regarding TUPE and whether this applies to workers.
By way of brief recap, the Transfer of Undertakings (Protection of Employment) Regulations apply so as to transfer employees of a business if its assets and goodwill are sold to the purchaser.
As the name suggests it protects their employment rights when the business is sold and passes their rights to the purchaser who inherits the employees on their existing terms.
Up to now, we had always worked on the assumption that this applied only to Employees however recent case law has suggested that this protection may be extended to workers.
In the case of Dewhurst -v- Revisecatch Ltd and City Sprint which was heard in London Central Employment Tribunal the Tribunal had to decide whether the Claimants who were all bike couriers were protected by the TUPE Regulations.
City Sprint had lost a contract upon which the Claimants were working to Revisecatch and Revisecatch employed the Claimants from 1st February 2018.
The Tribunal had to decide whether the liability for outstanding holiday pay transferred to Revisecatch. The Claimants also claimed that they had not been consulted properly in accordance with the TUPE Regulations.
The Claimants accepted that they were workers (the lead Claimant having previously successfully argued the point in separate litigation).
Regulation 2 (1) of TUPE says “Employee means 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 judge ruled that the words “or otherwise” meant workers were protected and that to say otherwise would be inconsistent with the Acquired Rights Directive recitals.
This decision is expected to be appealed given its implications and is of interest to anyone who is avidly following the worker cases and ongoing decisions which are extending their rights