In the case of Dewhurst v Ecourier and City Sprint, the Central London Employment Tribunal has reached the dramatic conclusion that TUPE does apply to workers as well as to employees, something that has the potential to extend its scope considerably. This is only the first stage, and a long sequence of appeals is likely to follow, but the Independent Workers Union of Great Britain is backing the claimants, and it is likely to be willing to bear the cost of taking the case further. Academics have long speculated that TUPE might apply to workers, but this is the first time that anybody has been prepared to commit to litigating the point.
Cases like this sometimes open the floodgates to copycat claims, and the risk for employers who engage workers has now increased. Furthermore, at least one of the claimants in this case was classified as self-employed originally and only won the right to be considered a worker at another hearing three years ago. This shows that, if TUPE does apply to workers, it might also apply to those believed to be self-employed.
It is now more important than ever for incoming contractors and other transferees to consider workers and apparently self-employed individuals in their due diligence, even if a transferor insists that TUPE does not apply to them, and only wants to provide the details of employees. It is also necessary for all of the parties to a transaction to agree how to allocate the risks that arise if there is any possibility that TUPE will apply. In some situations, it might be necessary for transferors to consider informing and consulting with workers.
But it is also possible to overreact to this news. It is not yet clear how common such claims will be, or how much desire there will be among workers to litigate them. The claimants in Dewhurst have not brought a claim for unfair dismissal, and it is unclear that workers would be able to do so, even if TUPE does apply. Cases will vary considerably in the size of the risk, and the financial consequences of that risk. Therefore, all parties to a transaction will want to examine the contracts carefully, regardless of an individual's status.