IWGB secure important judgment on TUPE and Workers

For union representatives in PCS, which has a majority membership of civil servants, there is limited need to be aware of the protections provided by the Transfer of Undertakings (Protection of Employment) Regulations 2006, or TUPE as it is more commonly called. But for union representatives more generally this is a key area upon which members will seek advice, particularly  among the lower paid gig and service economy workers. The main TUC unions have not been great at organising these workers but unions like the United Voices of the World (UVW) and Independent Workers Union of Great Britain (IWGB) have been doing great work in this regard.

In simple terms TUPE is legislation that means that every worker who works for an employer has a legal right upon the transfer of a business to a new business to be moved across with no break in employment and with no detriment to their terms and conditions of employment. In addition, there are mandatory collective consultation obligations with recognised unions (or elected representatives if there is no union) but this only applies if those are affected are accepted as workers (rather than, for example, self employed contractors). Given it is not unknown for workers to undergo takeover multiple time within a yearly basis this is an important right.

UK employment law has an iniquitous hierarchy of employment statuses (employee, worker, etc) with different legal rights attached to the employment status of the individual – the scandal of the situation is that the less secure the employment status often mirrors a lower level of legal rights. TUPE is not a product of the Parliament alone but instead this had to be implemented as this is a EU law.

In a potentially important case, Dewhurst and others v Revisecatch t/a Ecourier and City Sprint, the IWGB union have secured an important first tier tribunal that a person who is a worker within section 230(3)(b) will meet the definition of  employee with section 2(1) of the TUPE regulations. This  is a first tier decision so it is not formally binding on other tribunals but with the union planning a number of similar cases it is likely this will receive consideration at appellate level. In practical terms employers have frequently disregarded workers from any TUPE protections, in its own analysis Personnel Today has commented that the effect is that those”Only those truly in business on their own account are likely to fall outside the scope of TUPE.”

The IWGB’s Jason Moyer Lee, before the case decision, is quoted as saying that “For years, companies in the so-called ‘gig economy’ have gotten away with pretending the law doesn’t apply to them.” This decision is potentially a very important step to ensuring that gig economy workers are given a greater measure of protection when their employer’s are taken over or contracts re-assigned. It does however also point to the unfairness of the unfair dismissal, an employee faced with a TUPE breach has the option of claiming unfair dismissal, as it stands that does not apply to a worker (although I can see the possibility that that could be questioned).  

Congratulations to IWGB for their victory and solidarity in the continued fight!

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