Employment Tribunal decides TUPE applies to workers
Tuesday 10th December 2019
In Dewhurst v Revisecatch & City Sprint, the ET held that TUPE 2006 applies to workers as well as traditional employees. While ET decisions are not binding and this one is likely to be appealed, it is noteworthy as it has the potential to significantly extend the scope of TUPE protection.
The Claimants are cycle couriers and are workers as defined in section 230(3)(b) ERA 1996 (known as limb ‘b’ workers) working under a contract for services, rather than an employment contract. When the contract, to which they were assigned, was awarded to a new company, they argued that they fell within the scope of TUPE 2006. For this to be the case, they had to fall within the definition of “employee” as set out in TUPE 2006, which expressly states that it “does not include anyone who provides services under a contract for services”.
The ET considered that as TUPE 2006 gives effect to the EU’s Acquired Rights Directive 2001, it must be interpreted liberally. It considered the exclusion of those providing services under a contract for services as applying only to those independent contractors who are genuinely in business on their own account, who do not have any employment law rights to be preserved in the event of a transfer.
The Directive provides that ‘rights and obligations from a contract of employment or from an employment relationship existing on the date of a transfer’ will be transferred. Further, it defines an ‘employee’ as meaning ‘any person who, in the Member State concerned is protected as an employee under national law’. The ET therefore considered UK employment legislation, noting that “workers” are an intermediate class of “employee” benefiting from employment rights derived substantially from EU law such as equal pay, working time and discrimination. It follows therefore that “employment relationship” encompasses workers. An employee for the purposes of TUPE 2006 is “an individual who works for another person whether under a contract of service or apprenticeship or otherwise” and the ET found that the word “otherwise” makes clear the intention to confer rights and protections on a broader class of employees.
We will update you of any further developments in this case.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.