The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) provide employees with several important rights in the event that their employment is transferred. In Dewhurst and others v (1) Revisecatch Limited t/a Ecourier (2) City Sprint (UK) Limited an Employment Tribunal held that those rights applied not just to employees but also to the wider category of ‘workers’ who may be working without a contract of employment.
When City Sprint lost a delivery contract with HCA Healthcare several of their cycle couriers went to work for the new contract holder Ecourier. However due to the couriers not being engaged as employees but as workers it was disputed that any TUPE rights applied to them. The couriers argued that it was sufficient that they were engaged to carry out the work personally and that this was not work for a client or customer as they were not carrying out a business on their own account.
It was held that TUPE did apply to the couriers and that the failure of the employer to comply with their information and consultation obligations entitled them to compensation awards. TUPE should be treated as applying to both traditional employees and the wider category of workers. Support for this conclusion could be found in the original EU law that TUPE had implemented and in its wording, which referred to work under a contract of employment ‘or otherwise’.
As it’s only a decision of the employment tribunal it may not be followed but it does raise the possibility that when an employer is dealing with the loss of a contract or the sale of a business all individuals. including even those who may have been regarded as self-employed will need to be included in the information and consultation process. Failing to do so could lead to substantial liabilities as up to 13 week’s actual pay may be awarded in respect of each individual.