Specialist employment lawyer, David Dixey, discusses the recent employment tribunal case of Dewhurst v Revisecatch Limited and CitySprint (UK) Limited, and the possible extension of TUPE protection to encompass "workers".
Employers should be conversant with the Transfer of Undertakings (Protection of Employment) Regulations 2006 (known as TUPE). Under these Regulations employees' Contracts of Employment transfer when a business is sold (when there is transfer of an "economic entity"), or where there is outsourcing or insourcing of a service contract (the latter known as a service provision change).
Subject to certain exceptions TUPE means that employees will continue to be employed by the new owner of the business and their terms and conditions will also transfer and not be less favourable as a consequence of the TUPE transfer.
It has generally been acknowledged that TUPE protection applies to "employees" but was not enjoyed by individuals classed as "workers"; worker status is best described as a hybrid between full employment and self-employment. It is generally defined in legislation as covering those individuals who although not fully legally "Employed", nevertheless still have a contract to provide services personally.
However, a first instance Tribunal case of Dewhurst v Revisecatch Limited and CitySprint (UK) Limited has determined that the proper interpretation of the TUPE Regulations (along with the Acquired Rights Directive) is to include "workers" within the definition of "employee" for the purposes of a relevant business transfer.
Dewhurst is a first instance decision and therefore not binding on other Tribunals. However, until such time as the decision is appealed (if at all) employers could face potential TUPE related claims by “workers” who consider they have been affected by a business sale or outsourcing/insourcing of a service contract.
If you require any TUPE advice or have questions on any other employment law matter, you can contact David Dixey at Holmes & Hills Solicitors in Essex and Suffolk on 01376 320456.
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