TUPE: Employment Tribunal holds that TUPE covers workers as well as employees

An employment tribunal has held that workers come within the definition of employee for the purposes of TUPE. The case involved a cycle courier, Mr Dewhurst, who had previously been found to be a worker rather than a self-employed contractor (as we reported in January 2017)

Since that time, the business in which they work has transferred. TUPE is stated to apply only to employees, which is defined as any individual working under a contract of service or apprenticeship or otherwise. A tribunal has held that the EU Acquired Rights Directive means that this definition must encompass workers as well.

This decision is not binding on future tribunals; however it has had a lot of publicity and may lead to further claims. If future tribunals reach the same decision, it would expand the scope of individuals who would be entitled to automatically transfer and who should be included in information and consultation processes. While for the time being, there is no obligation on businesses to alter their established practices regarding workers in a TUPE process, parties to a TUPE transfer where there are a material number of workers in the transferor's workforce should consider the risks.

Transferees are likely to want to ensure indemnities protect against liabilities in respect of workers and transferors may wish to consider steps to mitigate risks, such as consulting with workers. Well-publicised, recent examples of people who are not employees but who have been found to be workers include Uber drivers, a Pimlico Plumber and an LLP member.

Dewhurst and others v Revisecatch Ltd t/a Ecourier, Employment Tribunal

 

Religion and belief discrimination: lack of belief in transgenderism and holding gender critical beliefs not protected

An employment judge has held that a researcher whose fixed term contract was not renewed after publishing articles and social media posts on her gender critical beliefs, and lack of belief in transgenderism did not hold protected beliefs under the Equality Act 2010. The claimant opposed government proposals to reform the Gender Recognition Act 2004 to allow people to self-identify as the opposite sex, believing that sex is an immutable biological fact. The claimant said that, notwithstanding her beliefs, she would use an individual's preferred pronouns as a matter of courtesy.

The employment judge held that it was a core component of the claimant's belief that she will refer to a person by the sex she considered appropriate even if it violated their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment. Applying the test in Grainger v Nicholson, he found that she genuinely held a belief as to a weighty and substantial aspect of human life and behaviour. Her belief also attained the necessary level of cogency and cohesion. However, her belief violated the dignity of others, and was not worthy of respect in a democratic society, and therefore was not entitled to protection under the Equality Act 2010. As a tribunal decision, it is not binding on other tribunals but the claimant has announced that she is considering her grounds for an appeal.

Forstater v Centre for Global Development, Employment Tribunal

 

Queen's Speech December 2019: employment aspects

The Queen's Speech on 19 December 2019 outlined a proposed Employment Bill, which will cover matters that have already been the subject of consultation or were mentioned in the Conservative party manifesto. These include encouraging flexible working (subject to further consultation, making this the default), introducing neonatal care leave and one week's leave for unpaid carers, creating a single labour enforcement body, and extending redundancy protection until six months after the end of maternity leave.

In relation to Brexit, the Withdrawal Agreement Bill no longer contains commitments to workers' rights, but the government says it will legislate for this separately. It is uncertain whether the proposed Employment Bill will have specific measures on this issue.

 

Religion and belief discrimination: ethical veganism can be a protected belief

An employment tribunal has held that a claimant's ethical veganism was a protected belief for the purposes of the Equality Act 2010. Ethical veganism extends to all aspects of life, not just diet. It includes, for example, not wearing clothes made of wool or leather and not using products tested on animals. This decision is not binding on other tribunals. Furthermore, the respondent did not contest that the claimant's belief qualified for protection. It follows that different tribunals might reach a different decision. Alternatively, if a future claimant held less stringent vegan views, this might cause their belief to fail to meet the established criteria for protection.

Even if this decision is followed, it is unlikely that many employers would actively discriminate against an employee for being an ethical vegan. However, an indirect discrimination risk might arise, for example, if an employer failed, without objective justification, to provide vegan options in a work canteen or at a work event or required an employee to work with products or clients which conflict with their beliefs. Nevertheless, many employers will already provide vegan catering options due to some religions having dietary restrictions.

Casamitjana v The League Against Cruel Sports, Employment Tribunal

 

Data protection: standard contractual clauses for data transfers potentially subject to more scrutiny

The advocate general has delivered an opinion that standard contractual clauses for transfers to data processors (SCCs) are valid, but that the data exporter (i.e. the data controller that transmits the personal data outside the EU) needs to make their own assessment as to whether the data importer (typically a service provider in a third country) is able to comply materially with all SCC requirements. For many organisations whose headquarters are outside the EU, the only personal data that they routinely transfer out of the EU is employee data. The AG's opinion, if followed by the CJEU, is a welcome indication of the likely viability of SCCs, albeit subject to greater scrutiny. Regardless of whether the CJEU follows the AG, this opinion serves as a good reminder of the need for strong due diligence of your third party service providers - will they keep the personal data safe and follow your instructions? Our global data privacy team has written an article analysing the opinion and the likely implications, which can be read here.

Data Protection Commissioner v Facebook Ireland Ltd (Schrems II), Advocate General