Should you consult with workers as well as employees in a TUPE process? 

At a recent preliminary hearing, the judge found that is was clear from the wide definition of “employee” in the TUPE Regulations that workers as well as employees are covered by the Regulations. Only the genuinely self-employed, who do not have any employment law or worker rights, would be excluded from its reach. This case concerns 3 cycle couriers who are claiming both statutory holiday pay and compensation for failure to consult with them under the TUPE Regulations.

Whilst this is a lower court decision and it remains to be seen if its interpretation of the definition of “employee” in the TUPE Regulations would be upheld by an appeal tribunal, employers are advised to also consider their workers, who are not employees for other purposes, in any TUPE process. 

As workers (unlike employees) do not have unfair dismissal rights, employers acquiring staff under the TUPE Regulations may decide not to take on workers without being concerned of the risk of unfair dismissal claims (assuming their employment status as “worker”, rather than “employee” is certain) and outgoing employers may decide to dismiss their workers prior to a transfer.

However, details of workers, as well as employees, should be included in the provision of Employee Liability Information to the new employer where they will transfer. The statutory information about them should also be included in the information given to representatives of the affected employees and consultation should take place with those representatives where “measures”, such as dismissals and contract changes in relation to those workers as well as employees, are envisaged as a result of the transfer.

The penalty for failure to comply with TUPE’s information and consultation requirements can lead to an award of up to 13 weeks’ pay per employee who has not been consulted with in accordance with the Regulations.

At Markel Law we regularly comment on SME related matters.

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