|HSADD Says: This decision may yet be subject to an appeal, but it is interesting that ‘workers’ are now covered under TUPE.
I have had this ongoing discussion in relation to what are ‘workers’ ’employees’ self-employed’ for years and particularly in the night-time economy where you may employ ‘self-employed’ door security, DJ’s, Promotion people, dancers.
I have long explained the risks of getting this wrong and being subjected to an investigation and recovery of N.I and Tax, so it is important that you place all your ‘workers’ into the correct category! Otherwise, your savings may be very short term!
|Does TUPE apply to limb ‘b’ workers, as well as traditional employees?
Yes, according to the decision of an employment tribunal sitting in London in Dewhurst v Revisecatch & City Sprint.
We never normally send out employment tribunal decisions, as they’re not binding. But this one is a stonker. Employment Judge Joffe has held, in a detailed and comprehensively reasoned judgment, that TUPE applies to ‘workers’ as well as traditional ’employees’.
Her reasoning massively simplified down, is that the Acquired Rights Directive requires TUPE to be interpreted liberally, and the definition of ’employee’ in TUPE is “an individual who works for another person whether under a contract of service or apprenticeship or otherwise…” The words ‘or otherwise’ must be taken to add something to the normal definition of ’employee’, and hence covers limb ‘b’ workers.
The decision was handed down yesterday. As an employment tribunal decision, it is not binding. The employers have 42 days to appeal. I suspect an appeal is likely. If the appellate courts agree, it means workers (as well as employees) transfer under TUPE. Wow.
|Credit for this item to www.danielbarnett.co.uk|