Posted On 16 Jun 2017
TUPE for Temps?
Many Occupational health professional will be aware of or been involved in TUPE Transfer or to give it the official title “Transfer of Undertakings (Protection of Employment) Regulations 2006”
The TUPE Transfer only really applies to permanent members of staff but this can potentially change as The Independent Workers Union of Great Britain is supporting an employment tribunal claim that could have an impact on temporary workers.
Just last month the Independent Workers Union of Great Britain announced that it is seeking to support a cycle courier in an employment tribunal claim against Courier Company City Sprint. The cycle courier is arguing that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) apply to workers as well as employees and that as he is a worker rather than a self-employed contractor, the provisions should apply to him.
TUPE protects the rights of employees when the business they work for is transferred. It also covers other situations when a client outsources services or brings an outsourced services in-house, and also where a client changes contractors who have been providing an outsourced service. The latter category is particular relevant to recruiters because the regulations potentially apply when they take over a contract to supply temporary workers to a client from another recruiter or lose a contract to another recruiter.
The TUPE provisions benefit employees in allowing them to transfer their employment from the outgoing business to the incoming business and to retain the same terms and conditions they were engaged under. There are also obligations on both the incoming business and the outgoing business to consult with the affected employees, with significant penalties for failure to do so.
The TUPE definition of ‘employee’ on the face of it excludes anyone engaged on a contract for services (the more common type of contract used for temporary workers), but applies to anyone engaged on contract of employment, apprenticeship or otherwise.
The latter words (‘or otherwise’) potentially hold the door open for workers to be in scope, with the contract for services exclusion only actually applying to individuals who are truly in business of their own account. Up until now the definition has not been tested as far as we are aware.
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