In the recent case of Dewhurst v Revisecatch Ltd t/a Ecourier, the employment tribunal has held that TUPE applies to workers as well as employees. Although not binding on other tribunals and subject to appeal, this case seems likely to be upheld and followed. This case may have a significant impact on the liabilities and costs involved in business transfers and outsourcing transactions.
The three claimants in this case are cycle couriers. They worked for City Sprint, who had a contract with HCA Healthcare to provide courier services. City Sprint lost this contract in January 2018 and Ecourier took it over, continuing to use the claimants to fulfil the contract.
The claimants have brought a number of claims against both parties, the most interesting of which, for these purposes, was a claim for a failure to inform and consult under TUPE.
The employment tribunal considered the definition of “employee” in the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). TUPE covers any individual working under a contract of service or apprenticeship “or otherwise”, but excludes the genuinely self-employed. The tribunal held that it was clearly intended to confer rights and protections on a broader class than just employees employed under an employment contract given the words ‘or otherwise’.
They looked at the various definitions of “employee” and “worker” in the other employment legislation and noted that workers are covered in the Equality Act 2010 as “employees”.
The tribunal also looked at one of the purposes of the Aquired Rights Directive (the European law that TUPE was originally derived from), which is to preserve the rights and protections which arise from national employment law, whatever they may be in particular EU member states.
The tribunal held that our national employment law in the UK protects workers, giving them the right to bring discrimination claims, amongst other things. Workers should therefore be entitled to have these rights transferred and protected under TUPE.
This is only a tribunal case, so is not binding on other tribunals. An appeal on this case is likely. However, it is a well-reasoned decision which seems likely to be upheld and followed.
Many people have said, prior to this case, that workers should be covered by TUPE based on the wider definition of employee in TUPE. This is the first case that has actually considered this issue, but this is a strong indication that workers should have the right to be informed and consulted prior to a TUPE transfer and should transfer to the transferee along with any claims they have (for example discrimination claims and holiday pay claims). This will have a significant impact on business transfers and outsourcing where there are workers working for the transferor.