To whom does TUPE apply?

26 Oct 2021

Covid-19 has dominated employment law in the last few months, as it has dominated all other walks of life. In the hope of providing some contrast to this, I have written occasional  blogs during the pandemic which deal with an issue which is likely to remain with us all for at least as long as the effects of Covid and which may prove as difficult to resolve. The issue of an individual’s employment status and the effect that has on their rights and on the rights and obligations of the person who uses their services.  

In this blog, I deal with the question: to whom does TUPE apply? The answer to this question was thought to be obvious: TUPE applies only to an employer’s employees. Those who are not employees have no TUPE related rights. But the answer may not be as clear as that. 

TUPE states that anyone employed by the transferor immediately before the transfer and who is: 

(i)    “Assigned to the organised grouping of resources or employees that is subject to the relevant transfer” and;
(ii)    has not objected to the transfer and;
(iii)    whose Contract of Employment would otherwise be terminated by the transfer….

….. will transfer to the transferee.

Who is  “employed” for this purpose?  

In TUPE this is defined as “any individual who works for another person under a contract or service or apprenticeship or otherwise but does not include anyone …. under a contract for services…”.  As a result, the definition of an employee under TUPE is arguably a little wider than the normal definition of an employee under, for example, (s) 230 (3)(a) of the Employment Rights Act 1996, which is used when deciding who can make a claim for unfair dismissal or to whom one should make a redundancy payment.  The definition clearly covers employees and apprentices and those employees on unpaid leave and probably, those on sabbatical. The definition does not include anyone who provides services under a contract for services such as a self employed consultant.

Might the definition extend to workers who satisfy the definition of section 230 (3)(b) of the Employment Rights Act 1996? In other words “workers”, people such as the Uber drivers who were last year held not to be employees but who are also not self employed contractors.  

The case of Dewhurst v Revisecatch Ltd

An Employment Tribunal Judgment given shorty before the pandemic in the case of Dewhurst v Revisecatch Ltd, held that TUPE applies to such workers. It is important to note that one key right of being unfairly dismissed if one is dismissed as the result of a TUPE transfer does not apply to workers for the simple reason that workers cannot claim unfair dismissal. Nor, for the same reason, are they entitled to redundancy payments if they are dismissed on a TUPE transfer. But the Tribunal held that workers had the right to be informed and consulted about a TUPE transfer. It follows that a protected award may be made in favour of such workers if their “employer” breaches this right. 

As the decision is that of an Employment Tribunal, it does not bind any other Tribunal or any higher Court. I am not aware that the case has been appealed by either party and there is presently no higher authority on the point. In the absence of higher authority, it may be wise to continue to deal with TUPE issues as in the past but keeping a close eye on further developments would be sensible. 

The result of the Dewhurst case is that employees have the full range of TUPE related rights; a Tribunal has held that workers have limited TUPE rights, and proper consultants have no rights at all under TUPE.  

Whether a Claimant in any given case is an employee, worker or consultant depends on the precise nature of their relationship with the transferor. This itself is a matter for the Court or Tribunal to decide on a case by case basis, relying on the careful balance of the factors I have highlighted in previous blogs.

DMH Stallard’s Employment Group is able to assist you to resolve the issues in this article. Please contact Stephen ten Hove by email or by phone on 020 7822 1518.

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