Operational efficiency HR toolkit
Legal-ease
Do workers transfer
under TUPE?
According to a recent employment
tribunal case: yes. The tribunal held
that the Transfer of Undertakings
(Protection of Employment)
Regulations 2006 (‘TUPE’) do apply
to workers.
The employment tribunal
previously considered the question
of whether TUPE applies to workers
in 2013 in the case of John
McCririck v Channel 4 Television
Corporation and IMG Media. It held
that a worker could be considered
an employee for the purposes of
TUPE because of the language in
regulation 2(1). In particular, it
stated that this was the very purpose
of the phrase ‘under a contract of
services …or otherwise’.
This view was supported by the
Court of Appeal case Governing
body of Clifton Middle School and
others v Askew, which considered
that all that was necessary for TUPE
to apply was some form of
contractual relationship between
the worker and the employer.
The employment tribunal in
Dewhurst v Revisecatch & City
Sprint considered this point in more
detail. The tribunal looked at other
employment legislation and noted
that the Equality Act and the
Working Time Regulations both
provide protection for workers
under the definition of ‘employee’.
The employment tribunal went on
to consider that the only parties
excluded from the TUPE definition
of employees are independent
contractors without any
employment rights.
It is highly likely that the decision
in Dewhurst will be appealed, and if
the judgment is upheld this will
have considerable implications
for employers going through a
TUPE process.
If the decision is upheld on
appeal workers will automatically
transfer to the new employer under
TUPE. This means the transferor
and the transferee will need to
inform and consult with the
representatives of both employees
and workers.
This is perhaps more complicated
than it first appears – workers will
need to be considered when making
decisions in relation to trade union
recognition, the structure of and
election of employee/worker
representation, and the implications
of any changes expected to occur
after the transfer is complete. Due
diligence exercises will need to be
robust to capture any ‘woodwork’
workers and transferees will rely on
more comprehensive warranties.
Although the decision is yet to be
confirmed on appeal employers
should consider workers when
making TUPE arrangements.
Transferees should undertake
increased due diligence on the
business’ entire workforce. This will
include considering the relationship
between the transferor and its
contractors who may actually be
classed as workers.
Tread carefully, as treating an
individual as though they are
covered by TUPE may give weight
to an individual’s argument on
worker status, but failure to include
a contractor who is in fact a worker
in the process means that they may
be exposed to claims.
Even though workers may be
protected by TUPE they will not
enjoy protection from unfair
dismissal under the Employment
Rights Act.
Nickie Pickernell is a
member of the employment
law team in the London office
of McGuireWoods
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