Workers do transfer under TUPE
In Dewhurst v Revisecatch Ltd the Employment Tribunal has decided that workers, as well as employees, transfer under TUPE.
The case involved cycle couriers who were claiming holiday pay and compensation for failure to inform and consult.
A preliminary hearing was held to decide whether “workers” fall within the definition of “employee” in TUPE. The employment judge considered the European Acquired Rights Directive, which TUPE implements. The Directive defines an employee as anyone who is “protected as an employee under national law”, and operates to transfer rights and obligations arising under an employment contract or an “employment relationship”. The UK’s national law includes various definitions of “employee”, encompassing both traditional employees and individuals in an intermediate class (not employees, but also not independent contractors) ie “workers”. Workers benefit from a limited range of employment rights such as the right to holiday and national minimum wage.
TUPE itself defines an “employee” as “any individual working under a contract of service, or apprenticeship or otherwise”. The employment judge held that this was intended to cover workers as they are individuals who are working such that the nature of that contract would fall within the words “or otherwise”. The judge considered that the reference to “or otherwise” must be intended to mean something; therefore it was more than semantics and reflected the purpose behind the Directive.
Although this is only a tribunal decision and therefore not binding on other tribunals, it is not unexpected given the broad wording in TUPE’s definition of “employee”. It cannot be long before this issue comes before the Employment Appeal Tribunal. Although it does not give workers unfair dismissal rights, it does mean that they are covered by the collective consultation provisions of TUPE and their worker rights, such as holiday pay and national minimum wage, (including any prior breach of such rights) would transfer as well as their contractual rights.
Employers should therefore consider including workers when providing employee liability information (ELI), and when looking at who is affected by any measures and in any collective consultation exercise. An award of at least £500 per worker for failure to provide ELI and a protective award of up to 13 weeks’ actual pay per worker for failure to consult is a high penalty to pay if an employer gets this wrong. Those involved in corporate transactions need to ensure that workers are included in any due diligence exercise and addressed in any warranties and indemnities.
Sponsor Licence Compliance: Key considerations & how to be audit ready
Join us for the third in our series of mini webinars on post Brexit immigration about sponsor licence compliance.
The Future of Property Careers
Join to our panel discussion and Q&A with industry leaders on the range of opportunities within the property and construction sector.
Liability for costs of repair (City of London v. Leaseholders of Great Arthur House)
Oliver Park writes an article for Lexis®PSL on a property dispute case.
Do You Believe?
New tax on property developers - consultation paper published
The government published a consultation paper on the design of the new residential property developers tax.
Procuring modular housing: Is MMC becoming mainstream?
Is Modern Methods of Construction becoming mainstream? Read what it means for Development and Procurement here.
Dual class share structures: how do they work and what are the pros and cons?
Dual class share structures allow a shareholder, for example the founder, to retain voting control over a company.
Q&A: Talking the telecoms talk
Georgina Muskett and Jonathan Wills answer queries on Electronic Communications Code agreement.
Property Patter: Navigating the complexities of Pharmacy Property
Pharmacy property is a specialist area which contains many traps for the unwary.
COVID-19 Vaccination – can an employer make it compulsory for employees?
We review what legal issues to take into account when considering to make vaccination compulsory as an employer.
Linking ESG and Executive Pay
How does a business go about embedding a focus on strong ESG performance into the structures and culture of its organisation?
National Security and Investment Act granted Royal Assent
The Act establishes a new regime for the review of mergers, acquisitions and other transactions that could threaten national security.
Recent Trends In Firewall Legislation: BVI, Bermuda And Gibraltar
Charles Russell Speechlys advises Waverton on acquisition of Cornerstone Asset Management
Established in July 2010 and with offices in Edinburgh and Glasgow, Cornerstone offers wealth management and financial planning advice.
What do the new Debt Respite Scheme Regulations mean for Landlords and Tenants?
This will provide legal protection from creditors in the form of either a breathing space or a mental health crisis moratorium.
Risk allocation in commercial leases: the High Court considers rent suspension, insurance and frustration arguments
Read our summary of the full judgement on the latest Covid arrears case.
Charles Russell Speechlys boosts private wealth offering with the hire of an international tax team
Robert Reymond will be joined at the firm by Leigh Nicoll, Emma Tyrrell and Oliver Cooper.
Proposed Takeover Code Amendments – Key Changes
The Consultation Paper has now been followed by a corresponding response paper which made certain modifications to the initial proposals.
Charles Russell Speechlys advises Fudco Partnership on sale to Exponent-backed Vibrant Foods
Fudco is a family-owned business selling South Asian ethnic foods in UK and Europe.
Charles Russell Speechlys advises Polar Technology on investment by BGF
Polar Technology Management Group is a holding company for engineering businesses operating at the leading edge of technology.