An Employment Tribunal has held that certain workers are capable of protection under the Transfer of Undertakings (Protection of Employees) Regulations 2006 (TUPE). The workers qualifying for protection are those known as “limb (b) workers”, i.e. those who are (i) under an obligation personally to provide services to a particular organisation and (ii) not in business on their own account.

It was not disputed in this case that the Claimants were limb (b) workers; the question was whether the definition of “employee” under TUPE encompassed limb (b) workers and whether they therefore were protected by TUPE. The Employment Judge considered the wording of the Acquired Rights Directive, which defines “employee” as “any person who, in the Member State concerned, is protected by an employee under national law”. Article 3 of the Directive provides for the transfer or rights and obligations arising from an employment contract or “employment relationship”. This suggested that TUPE is intended to cover a wider category of individuals than those working under a contract of employment.

In addition the Judge noted that, in UK legislation, the term “employee” encompasses limb (b) workers, as the Equality Act 2010 refers to them as such. It also protects this category of individuals from discrimination. The Judge felt that it could not be right that limb (b) workers are offered protection from discrimination, and yet, if not protected by TUPE, they have no recourse against a transferee to which liability for discrimination has transferred from an insolvent transferor. Accordingly, she held that limb (b) workers were capable of protection under TUPE.

Comment: This case has far-reaching implications given that it could substantially extend the category of individuals with rights to information and consultation and preservation of contractual terms under TUPE. However, it will not give limb (b) workers the right not to be unfairly dismissed, as this would give them an extra layer of protection to which they would not otherwise be entitled, which is not the intention of TUPE. It is very likely that this case will be appealed as it is only a first-instance decision, and employers will wish to wait for the outcome of that appeal before changing their practices. Watch this space as we report on developments.

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