Yes, according to the decision in Dewhurst v Revisecatch & City Sprint. Employment Judge Joffe, sitting alone in the London Central Employment Tribunal, found that an individual who is not an employee but still falls into the category of ‘worker’ should be viewed as an ’employee’ for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations (TUPE). This means that such ‘workers’ are afforded the same rights and protections as ’employees’ under TUPE.
The question of exactly who is protected by TUPE has always been a grey area. TUPE defines an employee as “any individual who works for another person whether under a contract of service or apprenticeship or otherwise but does not include anyone who provides services under a contract for services”. Employment Judge Joffe found that “or otherwise” makes it clear that it was intended to confer rights and protections on a broader class of individuals than just those employed under a contract of employment.
This is only a decision of the Employment Tribunal so it is not binding on other tribunals. There is no word yet on whether it will be appealed – that is one to watch.
The first TUPE Regulations came into force in 1981. These have since been replaced by the 2006 regulations. It has taken 38 years for a Tribunal to confirm that its terms apply to workers as well as employees. There is a division of opinion as to whether the case will open the floodgates to similar cases being litigated or whether this is, in reality, not going to make much of a difference to how TUPE operates in practice. While the dust settles and everyone takes stock, employers should make sure that from now on they include and account for their worker constituency during any transfer process.
