Dewhurst v Revisecatch Ltd
Do workers transfer under TUPE? The Employment Judge in Dewhurst v Revisecatch Ltd (t/a Ecourier) and City Sprint (UK) Ltd thinks so!
When a business or part of a business is sold, TUPE can automatically transfer the employment of employees in that business to the buyer. On outsourcing, it can also transfer employees within the function to the new provider.
Workers are a category of individuals who are not employees but are more closely connected to the business than an independent contractor. Quite a number of cases about ‘workers’ have related to those operating in the gig economy – such as fast food delivery, couriers and drivers.
TUPE legislation says that it applies to ‘employees’. However, the definition of ‘employee’ is wider than in some legislation. It means “any individual who works for another person whether under a contract of service or apprenticeship or otherwise.” This case considered whether that definition could include workers.
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In this case, the claimants are cycle couriers. They worked for City Sprint until January 2018, when it lost a contract to Ecourier. They were subsequently engaged by Ecourier. The three couriers brought claims for holiday pay, a detriment in respect of trade union activities and for failure to inform and consult under TUPE.
For the TUPE claim, it was necessary to decide whether the couriers were employees for the purposes of TUPE. The Tribunal held a preliminary hearing and decided that they were. It said that “or otherwise” was wider than just traditional employees, and included those that other legislation would describe as workers.
The decision of an Employment Tribunal is not binding on other courts or hearings, so we will be watching to see if this decision is appealed. It could mark a significant expansion in the scope of TUPE.
- If you are planning a business sale or outsourcing, review your workforce. Do you have anyone who is not an employee, but who might be a worker?
- When planning a consultation with employees for a TUPE transfer, consider whether to include workers in the consultation
- Similarly, consider whether you will treat workers as automatically transferred on a sale or outsourcing. Consider seeking independent legal on who you should be including
- When buying a business or tendering for outsourcing, ensure that your costings allow for the fact you may be receiving workers as well as employees, and make sufficient enquiries to obtain information on relevant workers
- Remember that the distinction between workers and employees still applies. Many rights only cover employees, including unfair dismissal.