A tribunal has just concluded that TUPE applies to workers.
This is an employment tribunal decision and not binding on other employment tribunals; the decision is persuasive when other tribunals reach their decisions. The case is Dewhurst v Revisecatch & City Sprint and the tribunal found that workers will fall within the definition of "employee" set out in Regulation 2(1) TUPE. This conclusion accords with the advice we have always given to clients.
Dewhurst was heard at a preliminary hearing which was listed specifically to determine the issue of whether three cycle couriers bringing claims for holiday pay and compensation under the Working Time Regulations 1998 (the WTR), as well as for failures to inform and consult under Regulations 13 and 14 of TUPE, could fall within the remit of TUPE. CitySprint lost a contract for the provision of courier services to HCA Healthcare to Revisecatch. In order for liability for the claims under the WTR to pass to Revisecatch, and for the claims for failure to inform and consult under TUPE to have any validity, the couriers had to show that they fell under the protection of TUPE.
Statutory definitions
Regulation 2(1) of TUPE provides that an employee is "any individual who works for another person whether under a contract of service or apprenticeship or otherwise but does not include anyone who provides services under a contract for services". The European law behind TUPE is the Acquired Rights Directive (ARD), provides that in the case of a relevant transfer what transfers is "the transferor's rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer".
This is wider than the definition of an employee in the law.
Decision
Employment Judge (EJ) Joffe referred to the ARD as the starting point for the interpretation of TUPE, concluding that rights should be preserved provided that they arise from national employment law.
The next issue was to look at who was protected by our national legislation "as an employee". It was found that it was not merely those who are defined as 'employees', but also encompasses those who are provided with a lower level of employment rights under the label 'worker'.
EJ Joffe concluded that these workers fell into a different class of employee who benefit from rights substantially derived from EU law (e.g. the right to equal pay, protection against discrimination, and rights to restrictions on their working hours). It was clear that these workers would be covered by the ARD as they have rights that arise from national employment law.
The wording of Regulation 2(1) TUPE states that it is intended to confer rights on a broader class of employees than those working under a contract of service or apprenticeship by the reference to "or otherwise". EJ Joffe concluded that these words are designed to reflect the words "employment relationship" in the ARD.
Practical implications
While Dewhurst gives clarity on this issue, it does give employers a practical problem in that those working on a TUPE transfer should now assess which of their staff are workers when drafting the TUPE list. As workers can often be labelled other things, such as bank, casual, or temporary staff, this might be a bigger task than one would hope.
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