TUPE May Include Workers as well as Employees

By Ezra Moffatt

Associate Legal Executive

In a decision made yesterday (27 November 2019) in the case of Dewhurst v Revisecatch & City Sprint, the Employment Tribunal judge held that the Transfer of Undertakings for the Protection of Employees (TUPE) Regulations applies to ‘workers’ as well as ‘employees’.

Under the Employment Rights Act a ‘worker’ is defined as:

‘an individual who has entered into or works under (or, where the employment has ceased, worked under):

(a) a contract of employment; or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.’

It is those individuals that fall under (b) that the judge has indicated TUPE applies to.

In her reasoning, the judge interpreted the definition given in TUPE of an ‘employee’ –‘an individual who works for another person whether under a contract of service or apprenticeship or otherwise…’ to mean that the word ‘otherwise’ added something more than the normal definition of ‘employee’ and, therefore included ‘workers’.  

Employment Tribunal decisions are not binding, and City Sprint have 42 days to appeal. Therefore, as it stands nothing has changed. However, if the Employment Appeals Tribunal agrees with the decision, then both workers and employees will transfer under TUPE, which is likely to have a large impact on some companies.

In the meantime, if you are buying a business that engages workers you will need to take appropriate measures to protect your business from the risk of claims from any workers you do not wish to transfer. 

For further information on TUPE and to find out how we can help you, please contact our Employment Team on 0345 646 0406 or fill in our online enquiry form and a member of our Team will be in touch.