workers

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

Uber Lose Appeal – But have appealed again (directly to the Supreme Court)

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In Aslam and others v Uber BV and others (2016) the Employment Tribunal held that Uber drivers are workers under the definition set out in the Employment Rights Act 1996. This ruling was made for the following reasons :-

  • The drivers were in fact employed in a type of contractual relationship as they were paid for being available and transporting Uber customers.
  • Drivers were both interviewed and recruited by Uber
  • Even though drivers had to provide their own vehicle, Uber were selective on which types of vehicles were permitted.
  • After being taken on, drivers were required to complete and induction process and were given training.
  • Drivers had to abide by rules and controls through the Uber app. Drivers had to follow precise routes to destinations for example.
  • Drivers were penalised for rejecting 3 jobs in a row and were also performance managed to a set of ratings.
  • Drivers had to follow a set of cancellation procedures.
  • There was no scope for drivers to build their own businesses as no leads were provided to them.

It was found that the drivers were bound by many of the restrictions that one would expect to find in a normal employment contract. Uber subsequently appealed to the EAT which upheld the Tribunal’s decision that Uber drivers are workers.

As workers, the Uber drivers are entitled to be paid holiday pay, the national minimum wage/national living wage, and other benefits that workers are entitled to, but which they were not receiving, given that Uber deemed them to be self-employed. Uber has now submitted a petition to appeal directly to the Supreme Court (by-passing the Court of Appeal) in an attempt to overturn the EAT’s decision.

Written by
Edward Aston
27th November 2017