worker status

TUPE

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The worker status debate leached into the TUPE sphere towards the end of 2019. A ‘worker’ is defined by section 230(3) of the Employment Rights Act 1996 (ERA) as:

An individual who…works under:

  1. A contract of employment, or
  2. Any other contract…where the individual undertakes to do or perform personally any work…for another party who…is not…a client or customer of…the individual.

TUPE is a legal mechanism which protects employees when the business they work for transfers to a new owner. TUPE defines ’employee’ as ‘any individual who works for another person whether under a contract of service or apprenticeship or otherwise‘ but does not include the genuinely self-employed. Previously there has been no case law on whether workers are covered by TUPE. Employers have considered it unlikely and usually limited TUPE obligations to employees.

Dewhurst v Revisecatch & City Sprint may have put a cat among the pigeons then. In this case, three workers said that they fell into the definition of ’employee’ under TUPE. They brought claims for holiday pay and failure to inform and consult. At a preliminary hearing to decide whether TUPE applied to them, the employment tribunal decided that workers were ’employees’ under TUPE. They were covered by the ‘or otherwise’ part of the definition. Only the genuinely self-employed were not included. The judge said that this interpretation was necessary to preserve the employment rights of those who work within businesses when they change hands.

This is an employment tribunal decision which means that other tribunals or courts don’t have to follow it. The employers are likely to appeal though, and the appeal decision will create binding law. Most employers treat workers differently to employees in a TUPE situation. If this decision is upheld on appeal, employers will need to revisit their approach to workers when considering their obligations under TUPE. With 13 weeks’ pay at stake per ’employee’ for a failure to inform and consult, any failure could be costly. Watch out for an appeal decision towards the end of the year.

Astons Solicitors
January 14th 2020

Gig economy

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Worker status is the holy grail in the gig economy, including the fields of taxi rides, food delivery and courier services. Workers are entitled to certain employment rights such as the national minimum wage and paid holiday, whereas the genuinely self-employed are not. Section 230(3) of the Employment Rights Act 1996 defines a worker as someone who works under a contract of employment or another contract ‘where the individual undertakes to do or perform personally any work…for another party who…is not…a client or customer of…the individual’. Case law has expanded on this definition and looked at issues such as mutuality of obligation, control, integration into the business and personal service.

Various questions have been referred to the Court of Justice of the European Union (ECJ) in the case of B v Yodel. The claimant was a courier who delivered parcels for Yodel. He used his own vehicle and mobile phone. His wore no uniform and carried no Yodel ID. He had a handheld Yodel device from which to receive information from Yodel and for Yodel to track his performance. He was not obliged to do any work and Yodel was not obliged to give him any. His contract said he could work for other companies. The contract also said he could send a substitute to do his work provided the substitute had the same level of skills and qualifications. B never sent a substitute to do the work but others on the same contract had done so. Does this defeat his claim to worker status? His contract says he is self-employed, but is he?

The ECJ is being asked to decide whether the ability to send a substitute will defeat worker status. The referral includes numerous other questions relating to this gritty issue in the hope of finding some clarity. We continue to watch this gig economy space.

Astons Solicitors
November 2019