Do TUPE transfer rules cover workers? “Gig” economy test case seeks precedent

19 May 2017

A test case brought by the Independent Workers’ Union of Great Britain (IWGB) seeks to find out whether TUPE transfer rules can be applied to ‘workers’ as well as to ’employees’.

The union recently won a case against courier firm Excel, which misclassified worker Andrew Boxer as ‘self-employed’. As a result of the tribunal decision, Boxer was awarded holiday pay owed to him by the company.

However, before the case was brought against Excel, the company had sold its business to CitySprint. CitySprint currently classifies Boxer as ‘self-employed’, despite the outcome of the case against Excel, and IGWB argue that by not transferring his proper classifiation as a ‘worker’, which brings with it workers’ rights including eligibility for paid annual leave, CitySprint is breaking TUPE law.

The union claims that winning this case will establish a precedent over whether or not ‘workers’ as well as ’employees’ can benefit from TUPE law, which could extend the rights of the increasing number of people who work within the so-called “gig” economy.<

In addition, the case will test whether Section 1 of the Employment Rights Act 1996 – which says employers must provide staff with all employment particulars within the first two months of employment – applies to workers as well as employees.

The Institute of Employment Rights proposes in its Manifesto for Labour Law – 25 recommendations for reform – that the distinction between an “employee” and “worker” is removed in order to create a universal definition of “worker” that encompasses all people in employment and provides them with the full suite of employment rights from Day One.

Today’s system provides employers with a means to evade basic workers’ rights such as the right to claim unfair dismissal, which creates an environment that favours exploitative employers.