TUPE: where do workers stand?

We’ve all seen articles in the papers over recent months about the gig economy, namely cases involving Uber, Pimlico Plumbers and Deliveroo. These cases have highlighted that it’s not always entirely clear whether those who are self-employed qualify as workers or employees.

A recent employment tribunal has found that ‘workers’, as well as ‘employees’, may be able to transfer under TUPE.

TUPE defines employees as those who work under a contract of employment and a worker, i.e. someone who is not engaged under an employment contract. The tribunal noted that, under the Acquired Rights Directive (ARD), in an ‘employment relationship’ is protected, including transfer of rights and obligations.

What does this mean for employers?

Assuming that the employment tribunals in these two cases are correct, there could be potentially important implications for employers managing TUPE processes.

Whilst each case is fact-specific, those who are defined as ‘workers’ may automatically move across from their existing employer (transferor) to the new one (transferee), and will therefore not need to enter into any new arrangements. Only those who are in business on their own account are likely to fall outside of this, i.e. true self-employed people.

All details about workers who are transferring over will need to be included and passed on by the transferor in the ‘employee liability information’, which it is required by TUPE to pass on to the transferee.

The most significant consideration of workers being classified as ‘employees’ when it comes to TUPE, is in relation to compliance with TUPE’s collective information and consultation obligations. The transferor is obliged to provide specified information about the transfer to representatives of the affected employees, including information around dismissals or contract changes.

Employers must ensure that, like employees, their workers are accounted for in any consultation process when it comes to TUPE.

If this doesn’t happen, failure to comply with TUPE’s consultation process can result in a penalty which is up to 13 weeks’ pay per employee, or indeed worker.

It’s important to note, however, that eligibility requirements for unfair dismissal claims remain unaffected, and only those who are classified as ‘traditional’ employees under an employment contract will be able to bring unfair dismissal claims.

Further information

If you’ve got questions about TUPE, employment contracts or any other area of employment law, our solicitors are here to help. To speak to a specialist employment lawyer in Bristol or South Gloucestershire call us on 0117 325 2929 or complete our online enquiry form.