UK: first instance tribunal decision that 'workers' covered by TUPE

An employment tribunal has ruled that 'workers', ie those who are not employed or self-employed but work under a contract personally to do work, qualify for protection under the Transfer of Undertakings (Protection of Employment) Regulations 2006.

TUPE implements the EU Acquired Rights Directive, which provides for the transfer of rights and obligations arising from an employment contract or “employment relationship” covering 'employees' as defined by national law.  Referring to the Equality Act 2010 definition of 'employee' as including anyone working under a “contract personally to do work”, the tribunal therefore concluded that such individuals have an “employment relationship” under the Directive.  They should therefore be held as coming within the definition in TUPE, which refers to an individual who works for another 'whether under a contract or service or apprenticeship or otherwise'.  As such, they should be included in Employee Liability Information required to be given to the transferee, their contracts would automatically transfer to the transferee on a business transfer or change of contractor covered by TUPE (although they would not be eligible to bring unfair dismissal claims should the transferee terminate their contracts), and they would also be covered by the information and consultation requirements, the penalty for breach of which is up to 13 weeks' gross pay per individual.

The decision is only at first instance and so not binding authority.  Employers will need to ensure that the possibility of claims based on worker status is addressed in warranties and indemnities, even if they decide, pending appellate authority, not to treat these individuals as in scope (for example, to avoid jeopardising arguments that they are in fact self-employed rather than workers).  (Dewhurst v Revisecatch Ltd t/a Ecourier)