Tribunal backs cycle couriers in transfer case

Rights under the Transfer of Undertakings (Protection of Employment) regulations apply to the broader category of worker, rather than just employees, an employment tribunal has ruled.

This is the first time that it has been accepted that the regulations apply to the wider group of workers – including freelancers, contractors, interns and others on atypical working arrangements.

The tribunal claim was brought by three cycle couriers who had worked on a contract providing courier services to HCA Healthcare.

The HCA contract was originally with City Sprint, but transferred to Revisecatch in February 2018.

The couriers argued that their rights to holiday pay transferred to Revisecatch.

They brought claims for holiday pay and failure to inform and consult under TUPE.

One of them also brought a claim of being subjected to a detriment for trade union activities.

The holiday pay and detriment claims would clearly apply to workers. But the employers said the TUPE claim could only apply to employees.

A preliminary hearing looked at whether TUPE could cover the broader category of workers. It did not deal with the specific facts of the three individual couriers.

The employment judge said that the TUPE regulations applied to those who would usually fall under the term of ‘worker’ or known as ‘limb (b) workers’ and those covered by the Equality Act (which also has a broader definition of employee).

“Employment relationship in the Directive is properly read as embracing this class of working person. These are individuals whom our domestic law protects under the label of ‘employees’ under the Equality Act 2010 and as ‘workers’ under other legislation.”

The case will now go to a full hearing to determine the specific facts and make a judgment on the key issues.

Prospect head of legal Marion Scovell said: “This is only a tribunal decision and may well be appealed. But the judgment is fairly compelling and hopefully it will survive if it goes to the higher courts.

“In the meantime, union negotiators and reps should argue that where TUPE applies because there is a business transfer or change of service provider, all workers (in the broadest sense) will be covered by the rights under TUPE.

“This would include maintaining terms and conditions and statutory rights after the transfer.

“TUPE also gives workers the right to be informed and consulted over the transfer. This must be through the recognised union if there is one, or alternatively through workplace representatives” Scovell added.

See our members’ guide to atypical working for more information on determining employment status. https://library.prospect.org.uk/download/2013/00066