In a highly controversial judgement, an Employment Tribunal has found that TUPE applies not only to employees but also to the lesser category of “worker”.
The three Claimants in the case of Dewhurst, Marchant and McQuade v Revisecatch Ltd t/a Ecourier and City Sprint (UK) Ltd were cycle couriers. The Claimants brought claims for holiday pay and failure to inform and consult under TUPE, amongst others.
The first Respondent, Revisecatch, was a courier company which engaged the services of the Claimants from 1 February 2018. The second Respondent, City Sprint, engaged the Claimants until 31 January 2018, when it lost its contract for the provision of courier services to the first Respondent.
The holiday pay claims before the Tribunal depended on the cycle couriers being found to be “workers” within the meaning of the Working Time Regulations 1998. For liability for such claims to have passed from the second Respondent to the first Respondent and for the Tribunal to have jurisdiction to hear claims for failure to inform and consult under TUPE, the Claimants would have to be “employees” within the TUPE regulations.
The London Central Employment Tribunal at case management hearing was asked to determine whether the term “employee” in TUPE includes a “worker” as defined by the ERA 1996 and the Working Time Regulations 1998.
The Employment Tribunal Judge found that it was clear from the wording of TUPE 2006 that it is intended to confer rights and protections onto a broader class of individuals than those employed under a contract of employment or apprenticeship as reflected in the words “or otherwise”. The Employment Tribunal Judge concluded that the words “or otherwise” in TUPE are to be construed so as to embrace those workers/the category of individuals protected by the Equality Act 2010, which is wider than simply including employees.
It should however be borne in mind that Employment Tribunal findings are not binding on other Tribunals and that furthermore, this judgement is likely to be appealed. However, it is an important first instance decision, which must be borne in mind by all those involved in TUPE- related employment issues.