TUPE protection may extend to workers

The recent employment tribunal decision in Dewhurst v Revisecatch and City Sprint may lead to an important change in the scope of legal protection for individuals when there is a change in service provider or on the sale of a business. The London Central employment tribunal decided that workers, and not just employees can be protected by TUPE, when it found that TUPE could apply to three cycle couriers.

The couriers initially worked for City Sprint, who held a contract with HCA Healthcare which it lost to Revisecatch when they took over providing courier services to HCA Healthcare from 1 February 2018. From the same date, the couriers started working for Revisecatch. They brought employment claims against both courier companies. The tribunal found that as workers TUPE could apply to them. Until now it was thought that only employees are protected by TUPE. There are three categories of employment status with different rights; employees, workers and self-employed. Individuals who are genuinely self-employed are not protected by TUPE.

TUPE often applies when a service is outsourced or a new provider takes over the service from another provider. The staff engaged in working on that service will usually automatically transfer to become the new provider’s employees. The staff have a number of significant rights, including:

• the right to stay on their existing contracts;
• the right to keep their periods of continuous employment; and
• the right to not be dismissed just because they transferred.

The number and identity of the individuals who fall within the scope of TUPE is therefore significant.

This is only a decision of an employment tribunal, so tribunals do not have to follow it. However, if appealed and the Employment Appeal Tribunal agrees with the tribunal, tribunals will be bound by it.

Determining employment status is difficult. Individuals are frequently wrongly labelled. If you are involved in a situation which potentially involves TUPE, we can help you assess the employment status of staff and advise you on minimising risks to your business.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.