Potentially important change in employment law where there is a business transfer

Most readers will know that there are rules in place to protect employees if the business in which they are employed changes hands. They are rather snappily entitled “the Transfer of Undertakings (Protection of Employment) Regulations” (TUPE for short) and their effect is to move employees and any liabilities associated with them from the old employer to the new employer.

It has always been understood that TUPE only applied to employees, so that any genuinely engaged sub-contractors or self-employed workers were not given the same protection.

However, the judge in a recent case which came before an employment tribunal sitting in London (Dewhurst v Revisecatch & City Sprint) held that TUPE applies to 'workers' as well as traditional 'employees’.

The decision was made on 27 November 2019 but as it was an employment tribunal decision, it is not binding at the moment. The employers have 42 days to appeal and we suspect an appeal is likely. If the Employment Appeal Tribunal agrees with the judge’s reasoning, it means that workers (as well as employees) transfer to the new or “incoming” employer under TUPE.

This could have significant implications for any business which is being sold, transferred or where there is a change of service provider. We will monitor the position and let you know if there is an appeal and if so, whether it is successful.

If, in the meantime, you have any queries about this or any other employment law related matter, please don’t hesitate to contact Amanda Jefferies.