TUPE - Potentially Important Decision

Does TUPE apply to limb 'b' workers, as well as traditional employees?

Yes, according to the decision of an employment tribunal sitting in London in Dewhurst v Revisecatch & City Sprint.

We never normally send out employment tribunal decisions, as they're not binding. But this one is a stonker. Employment Judge Joffe has held, in a detailed and comprehensily reasoned judgment, that TUPE applies to 'workers' as well as traditional 'employees'.

Her reasoning, massively simplified down, is that the Acquired Rights Directive requires TUPE to be interpreted liberally, and the definition of 'employee' in TUPE is "an individual who works for another person whether under a contract of service or apprenticeship or otherwise..." The words 'or otherwise' must be taken to add something to the normal definition of 'employee', and hence covers limb 'b' workers.

The decision was handed down yesterday. As an employment tribunal decision, it is not binding. The employers have 42 days to appeal. I suspect an appeal is likely. If the appellate courts agree, it means workers (as well as employees) transfer under TUPE. Wow.

(c) Daniel Barnett

If you need HR / contract advice & support, please contact us at info@riverviewportfolio.co.uk