Employment Disputes

"Status of temporary workers and TUPE ..."


TUPE

The TUPE regulations ensure that when a business transfer occurs, employees moving across to the new employer (known as the incoming employer) bring with them their length of service and terms and conditions, and that there is a structure for the transfer process.

The TUPE regulations usually apply when:

  • a business or part of one is sold to the incoming employer, or
  • two or more companies cease to exist and combine to form a new company, or
  • activities are outsourced to a contractor or brought back in house.

TUPE applies regardless of the size of the organisation, although there are minor differences concerning how smaller employers with less than 10 employees are required to consult.

Generally speaking, the TUPE regulations apply to employees whose work moves over to the incoming employer. However, there are very specific rules around this which are covered in more detail in the guidance.

Employment Status

In employment law a person’s employment status helps determine their rights, and their employer’s responsibilities.

The main types of employment status are:

Most of these are self explanatory, but many people often struggle to differentiate between a Worker and an Employee.

An employee is someone who works under an employment contract. All employees are workers, but an employee has extra employment rights and responsibilities which don’t apply to workers who aren’t employees.

Someone who works for a business is probably an employee if most of the following are true:

they’re required to work regularly unless they’re on leave (eg holiday, sick leave or maternity leave)

  • they’re required to do a minimum number of hours and expect to be paid for time worked
  • a manager or supervisor is responsible for their workload, saying when a piece of work should be finished and how it should be done
  • they can’t send someone else to do their work
  • the business deducts tax and National Insurance contributions from their wages
  • they get paid holiday
  • they’re entitled to contractual or Statutory Sick, Maternity, or Paternity Pay
  • they can join the business’s pension scheme
  • the business’s disciplinary and grievance procedures apply to them
  • they work at the business’s premises or at an address specified by the business
  • their contract sets out redundancy procedures
  • the business provides the materials, tools and equipment for their work
  • they only work for the business or if they do have another job, it’s completely different from their work for the business
  • their contract, statement of terms and conditions or offer letter (which can be described as an ‘employment contract’) uses terms like ‘employer’ and ‘employee’

If you are still not sure, then please do not hesitate to contact us for assistance.


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