18 December 2019

Workers protected on a transfer of an undertaking as well as employees

Dewhurst v Revisecatch Ltd t/a Ecourier ET2201909/18

Why care?

If the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) apply then employees transfer on their existing terms of employment from the transferor to the transferee. TUPE defines “employee” as any individual working under a contract of service or apprenticeship “or otherwise”, but excludes the genuinely self-employed. In this case medical couriers argued that they, as workers, should also have the benefit of TUPE protection.

The case

Workers who argued that they should have transferred in accordance with TUPE brought claims for unpaid holiday pay and failure to inform and consult on a TUPE transfer. The employment tribunal at the case management hearing had to decide the scope of the term ‘employee’ under TUPE and whether a worker as defined under 230(3)(b) Employment Rights Act ERA 1996 (ERA) and/or regulation 2(1) WTR 1998 was within the wider definition and so benefit from the rights and protections conferred by TUPE. Such workers are often referred to as ‘limb b) workers’.

The tribunal held, after also considering the Directive from which TUPE is derived, that TUPE was intended to confer rights on a wider class of individuals than just those employed under an employment contract, due to the wording “or otherwise”. This therefore included the claimants as limb (b) workers.

What to take away

The decision is not binding and the employers have 42 days to appeal. In the meantime businesses may want to consider whether this broader definition of individuals should be informed and consulted on any TUPE transfer and be placed on lists of Employee Liability Information which is provided by the transferor to a transferee not less than 28 days before a transfer.

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