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An Employment Tribunal has decided that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) applies to “workers” as well as traditional “employees”.
An employee is employed under a contract of employment. However, a worker is typically engaged to provide personal services on a more casual or ad hoc contract; they can accept or reject an offer of work, without penalty, and are not an integral part of the employer’s organisation.
Employees have far more statutory rights than workers, such as protection from unfair dismissal and redundancy rights. However, workers do have some rights, such as discrimination protections, national minimum wage rights, working time rights and annual leave.
Mr Dewhurst and two of his colleagues alleged that they were owed £35,000 by their ex-employer, Citysprint. They claimed that the debt should be paid by their current employer, eCourier, who is part of the Royal Mail group, as it had transferred pursuant to TUPE.
Royal Mail argued that TUPE did not protect the “workers” that had transferred from Citysprint to eCourier, but only protected employees.
The Claimants argued that Royal Mail was incorrect to think that TUPE did not apply. They contended that Royal Mail had breached its informing and consultation obligations, by failing to consult with any of its workers. The Employment Tribunal agreed with them and decided that TUPE was intended to confer protections and rights on both workers and employees.
Currently, this case has only been determined by the Employment Tribunal, so it is not binding on other tribunals. However, if it is appealed, and the Employment Appeal Tribunal agrees with the decision, when there is a TUPE transfer, employers will need to take account of a wider range of staff. Employers may assume liabilities for the acts or omissions of previous employers, for example, in relation to discrimination and also will need to make sure that they have consulted with and provided information to those that meet the definition of “worker”.
It is worth noting that workers are not able to bring a claim of unfair dismissal and they also do not have redundancy rights, which are the reserve of “employees”. Therefore, whilst this case might result in TUPE consultation processes being expanded to workers, the same workers are left without a clear remedy should they be dismissed because of the transfer.