The Employment Tribunal has found that workers – also referred to as ‘dependant contractors’ or ‘limb (b) workers’ – are protected by the TUPE Regulations in the same manner as regular employees.

In an action brought forward by bicycle couriers under the TUPE Regulations (for failure to pay out holiday pay and failure to consult regarding the transfer of business), the Employment Tribunal assessed the meaning of ‘employee’ under the Regulations and concluded that the law stretches the definition from what one traditionally considers an employee to be.

The Regulations provide that protection is conferred upon persons engaged under contracts of employment or “otherwise”.  The Employment Tribunal considered the wording of the Acquired Rights Directive (ARD) (which the TUPE Regulations implement) which aims to protect various types of persons including ‘workers’ (understood to be ‘dependant contractors’) when a business or undertaking is transferred.

Businesses must be aware of the implications of this judgments and assess whether any of their self-employed contractors are in fact ‘workers’, most particularly when the provide a service solely (or mostly) to a single business.  This is especially the case when dealing with gig-service providers, as the law is slowly but surely catching up to and effectively regulating the gig economy in order to curtail any abuse on service providers.

It must however be noted that the decision may still be appealed and therefore overturned.  One must also keep in mind that such considerations are only being made with regard to the TUPE Regulations, and not to other sections of employment legislation which apply to regular employees.

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