DWF logo

Search

DWF logo

            TUPE: Do workers qualify for protection when a relevant transfer takes place?

            In the case of Dewhurst v Revisecatch Ltd t/a Ecourier, an Employment Tribunal has held that workers qualify for protection under the Transfer of Undertakings (Protection of Employment) Regulations 2006 ("TUPE").

            Date: 13/12/2019

            Background

            The claimants in this case were cycle couriers who brought claims for (amongst other things) failure to inform and consult under TUPE. 

            The claimants' employment status was not in dispute following a decision by an Employment Tribunal in earlier proceedings that they were workers.

            Accordingly, the issue for the Tribunal was to decide whether a worker falls within the definition of 'employee' in regulation 2(1) of TUPE, which defines an 'employee' as any individual working under a contract of service or apprenticeship "or otherwise" but excludes the genuinely self-employed, so as to benefit from the rights and protections covered by TUPE.

            Decision 

            The Employment Tribunal's starting point was to consider the European Acquired Rights Directive ("ARD"), which TUPE implements into UK law, and which has as its purpose the safeguarding of rights under national employment law. The ARD provides for the transfer of rights and obligations "arising from a contract of employment or from an employment relationship existing on the date of transfer". It defines an employee as "any person who, in the Member State concerned, is protected as an employee under national law".

            On review of domestic legislation, the Employment Tribunal found that the term 'employee' is used to describe both employees and workers, in particular in the Equality Act 2010. Under national employment law, workers enjoy a number of employment rights substantially derived from European law, for example the right to equal pay, protection against discrimination and restrictions on working hours. Therefore, the Tribunal held that an "employment relationship" under the ARD must be read as including such individuals.

            The Tribunal concluded that it was clear from its wording that regulation 2(1) of TUPE 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". The Tribunal was required to interpret regulation 2(1) TUPE in accordance with the ARD and the words "or otherwise" had to be construed to include workers.

            Comment

            As this is only an Employment Tribunal decision, it is not binding. Given the significance of the decision, we expect it to be appealed. Therefore, employers may want to wait for the outcome of any appeal before changing their practices on a TUPE transfer.

            If the decision is upheld on appeal, the consequences will be significant. As well as the rights and liabilities relating to the workers' contracts transferring (such as pay and accrued holiday) it will mean that employers will need to factor in workers as part of their information and consultation obligations. This will include providing details about the transferring workers in the transferor's "employee liability information"; whether the transferee, in relation to such workers, envisages any measures; and ensuring workers are included in any election and consultation process. Failure to comply with these obligations could lead to a protective award of up to 13 weeks' pay per worker. 

            It will also be important for employers to consider whether their commercial contracts cover the scenario where workers transfer under TUPE and whether any additional protection, including relevant indemnities, need to be built into these contracts to cover the additional risks.

            Related people

            Nigel Cousin

            • Senior Associate

            Joanne Frew

            • Partner // Head of Employment (Manchester)

            We use cookies to give you the best user experience on our website. Please let us know if you accept our use of cookies.

            Learn More

            Your Privacy

            When you visit any web site, it may store or retrieve information on your browser, mostly in the form of cookies. We mainly use this information to ensure the site works as you expect it to, and to learn how we can improve the experience in the future. The information does not usually directly identify you, but it can give you a more personalised web experience.
            Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change permissions. However, blocking some types of cookies may prevent certain site functionality from working as expected

            Functional cookies

            (Required)

            These cookies let you use the website and are required for the website to function as expected.

            These cookies are required

            Tracking cookies

            Anonymous cookies that help us understand the performance of our website and how we can improve the website experience for our users. Some of these may be set by third parties we trust, such as Google Analytics.

            They may also be used to personalise your experience on our website by remembering your preferences and settings.

            Marketing cookies

            These cookies are used to improve and personalise your experience with our brands. We may use these cookies to show adverts for our products, or measure the performance of our adverts.