Watch this space – potentially significant TUPE decision

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) protects the rights of employees when the business they work for or the contract they work on transfers to another organisation (e.g. acquisition of business, insourcing or outsourcing).

It has been understood that those protected within the scope of TUPE are employees only.

However, Employment Judge Joffe has handed down a detailed judgment in Dewhurst v Revisecatch & City Sprint that TUPE potentially applies to workers as well as traditional employees, potentially broadening the protection quite significantly.

The claimants brought various claims including for a failure to inform and consult on a transfer. The ET had to look at whether they would be covered by the protection, as they were “workers” under s230(3)(b) of the Employment Rights Act 1996. EJ Joffe determined that the protection should be extended to those deemed workers under English law as the EU Acquired Rights Directive from where TUPE’s origins lie, requires TUPE and the definition of “employee” to be interpreted liberally.

This is only a first-instance decision and is not binding, but if it is upheld on appeal could have very significant implications for businesses, with potentially liability to inform and consult being extended to a wide class of individuals (although automatic unfair dismissal would remain only the premise of traditional employees). An appeal seems likely, and any EAT decision on the matter could be very significant indeed. Watch this space for developments!

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