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UK: TUPE – An employment tribunal considers whether workers qualify for protection under TUPE

“Citysprint provided courier services to HCA Healthcare. R took over the provision of those services when Citysprint lost its contract. Three cycle couriers working for Citysprint claimed that they transferred to R under TUPE, notwithstanding the fact that they were engaged as “”workers”” and not traditional employees. The cycle couriers brought employment tribunal claims against both Citysprint and R for outstanding holiday pay and failure to inform and consult under TUPE.

Under TUPE, the transferee effectively “”steps into the shoes”” of the transferor so that any potential claims (such as any rights to holiday pay) that the employee had against the transferor can be made against the transferee. The tribunal had to consider whether TUPE also applied to the intermediate class of “”workers”” who, unlike traditional employees, only benefit from limited employment rights (such as holiday pay and discrimination protection).

TUPE implements the EU Acquired Rights Directive (ARD) which provides for the transfer of rights and obligations arising from an employment contract or “”employment relationship””. UK employment law provides levels of protection to both traditional employees and so called “”workers””. Take, for example, the Equality Act, which provides discrimination protection to both. The judge reasoned that since the purpose of the ARD is to preserve rights under national employment law, it cannot be in accordance with the ARD, or discrimination law, for workers to be entitled to discrimination protection but not to be entitled to preserve those rights as against a transferee. Accordingly, the UK class of employee known as “”workers”” must come within the term “”employment relationship”” in the ARD.

The judge then looked at what this means under domestic law. TUPE defines “”employee”” as any individual working under a contract or service or apprenticeship “”or otherwise””, but excludes the genuinely self-employed. The judge reasoned that the words “”or otherwise”” shows that TUPE was intended to confer rights on a broader class of employee than those just employed under an employment contract. The tribunal was required to interpret TUPE in accordance with the ARD so the words “”or otherwise”” had to include “”workers””.

Practical point

This decision is potentially highly significant, particularly for those businesses which engage contractors and zero hours workers who are not regarded as traditional employees. It potentially also reopens the debate about partners, given they are workers. However, it is only an employment tribunal decision so is not binding on other tribunals or the courts. Employers should therefore wait until this decision is confirmed by an appeal court before making any changes to their practices on the transfer of an undertaking or change in service provision.

Dewhurst & others v Revisecatch Limited t/a Ecourier(1) and City Sprint (UK) Ltd (2)”