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 Limited t/a Ecourier ET Case No. 2201910/1/2018) and, while it is yet to be confirmed by an appeal court, it suggests that:

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

• employers should be including 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.

Even if workers transfer under TUPE they would not have a right to claim automatically unfair dismissal, ordinary unfair dismissal or redundancy pay unless they also meet the definition of an employee under the Employment Rights Act 1996.