In the case of Dewhurst v Revisecatch & City Sprint, Employment Judge Joffe, sitting at an employment tribunal in London on 26 November 2019, concluded that workers fall within the definition of “employee” under the Transfer of Undertakings (Protection of Employment) Regulations (“TUPE”).

The decision is not binding on other Employment Tribunals, but should be taken into account by them unless it is appealed. The employers in the case have 42 days in which to appeal.

This case relates to three cycle couriers’ claims for holiday pay and compensation under the Working Time Regulations 1998 (the WTR), as well as for failures to inform and consult under TUPE. The couriers were workers for CitySprint which lost a contract for the provision of courier services to Revisecatch. In order for the liability for the claims to pass to Revisecatch, and for the claims to inform and consult under TUPE to have any validity, the couriers had to show at the preliminary hearing on 26 November 2019 that they were protected under TUPE.

This decision concludes that the European law behind TUPE, the Acquired Rights Directive (“ARD”) requires TUPE to be interpreted liberally. The ARD provides that what transfers in a relevant transfer is "the transferor's rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer".

Under TUPE an employee is defined as "an individual who works for another person whether under a contract of service or apprenticeship or otherwise...". Employment Judge Joffe held that the words 'or otherwise' must be taken to add something to the normal definition of 'employee' and reflect the words “employment relationship” in the ARD. It was therefore held that TUPE applies to “limb b workers” as well as traditional employees.

The decision does not increase the rights of workers to include the likes of unfair dismissal, or redundancy pay. However, those working on a transfer should consider which members of staff are workers and therefore may transfer under TUPE. Pursuant to this decision, workers’ contractual and statutory rights would continue after a business transfer or service provision change. Importantly, employers would also be required to inform and consult with workers about a relevant transfer in the same way as they do with employees and this is likely to be the principal issue for consideration by employers. Failure to inform and consult can lead to a financial penalty of up to 90 days’ pay for employees/workers.

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