Who is covered by TUPE?

It has been established law for many years that only employees are protected by TUPE. However, the regulations have a slightly different definition of “employee” from other employment legislation and a 2019 decision of an employment tribunal (ET) said this means that those with “worker” status are also protected under TUPE (see Chapter 2). The case is Dewhurst v Revisecatch Ltd t/a Ecourier ET Case No. 2201910/1/2018) and suggests that:


• negotiators can require the transferee to honour statutory obligations to workers including the National Minimum Wage and holiday pay;


• employers should include workers in their information and consultation arrangements on a TUPE transfer (failure to do so could result in an award of up to 13 weeks’ pay per individual);


• worker information should be included in the due diligence process, in the employee liability information provided to the purchaser, and when negotiating warranties and indemnities.


The previous Conservative government ran consultation from 16 May to 11 July 2024 that included a proposal to effectively reverse the Dewhurst judgment and to reaffirm that only employees are protected by TUPE. The newly elected Labour government in its policy paper Next Steps to Make Work Pay said it “will launch a call for evidence to holistically examine a wide variety of issues relating to TUPE regulations and process, including how they are implemented in practice”.