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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47418
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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can a self employed person who employes 5 staff be tupe over

Customer Question

can a self employed person who employes 5 staff be tupe over if he has a rolling contract that has been in place for 20 years
Submitted: 4 years ago.
Category: Law
Expert:  Ben Jones replied 4 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today. Do you mean if the self employed person themselves can be TUPE'd over?

JACUSTOMER-z6mm9c9z- :

no i am a professional golfer who runs a golf course on behalf of a council it will be put out to management trust.

JACUSTOMER-z6mm9c9z- :

who employ 5 staff i have provide this service for 20 years while while my staff can be tupe over it has been suggested

JACUSTOMER-z6mm9c9z- :

that as this has been my only contract and is my only place of work which has no end to this contract only with 6 months notice by either party that i could be tupe over

Ben Jones :

In order to be protected under TUPE, the first requirement is that the person needs to be an employee, which means self employed workers, agency staff or volunteers will not be covered. They will then only be covered if they are permanently employed in the business (or part of it) that is being transferred.

Next, one has to determine if the person is ‘assigned’ to the organised grouping of employees transferring. As there is no definition of what ‘assigned’ means, whether the employee is assigned is essentially a factual question and needs to be determined by taking into account different factors, such as:

  • The percentage of time spent working in the business being transferred
  • The amount of value given to each part by the employee
  • The job description and what the employee is contractually required to do

Finally, the business or service that transfers has to continue with the new employer. Therefore, any activities that are currently carried out must continue with the new employer after the transfer. If the business or services changes significantly after the transfer then TUPE protection would not apply.

If you are genuinely self employed, regardless of whether this was your only work and it has been ongoing for a number of years, you will not be covered by TUPE. You will therefore have to show that you were an employee of the transferring business in order to claim TUPE protection.

Ben Jones :

has this answered your query?