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Question: Critically analyse whether Charlotte may be considered an employee or self-employed and hence whether she would be protected by the TUPE Regulations.

11 Oct 2022,7:00 PM

 

Charlotte has been working as an online promoter and distributor for the flower bouquets of ‘Elegant Bouquets Ltd’ since September 2017. One of the customers of ‘Elegant Bouquets Ltd’ is ‘Exquisite Weddings Organisers Ltd’ which has a number of shops in Kent. Charlotte was promoting and attending and presenting networking events in ‘Elegant Bouquets Ltd’ five days a week. She had to work full time but doing the hours she wanted, and she could also decide how long she needed to complete her work. She was paid by project completed and not by the hour.

 

In January 2022, the promotion and networking contract ‘Elegant Bouquets Ltd’ had with ‘Exquisite Weddings Ltd’ was transferred to ‘Impressive Flowers Ltd’, another florist business. Charlotte therefore has been promoting and offering training for ‘Impressive Flowers Ltd’ since the time of the transfer. Six months after the transfer ‘Impressive Flowers Ltd’ decided that there was a need for financial cuts and on this basis, it introduced the same terms and conditions for all employees.

 

From the facts of the scenario, critically analyse whether Charlotte may be considered an employee or self-employed and hence whether she would be protected by the TUPE Regulations. Illustrate your answer with reference to relevant case law.

 

Expert answer

 

Charlotte may be considered an employee for the purposes of the TUPE Regulations as she is providing services as part of an employment relationship. The fact that she is self-employed does not preclude her from being considered an employee for the purpose of TUPE protection.

 

The TUPE Regulations protect the rights of employees who are transferred from one business to another. The regulations apply when there is a relevant transfer of an undertaking, business or part of an undertaking or business...................

 

If Charlotte is considered to be an employee, then her rights will be protected under the TUPE Regulations. This includes her right to transfer to the new company on her current terms and conditions of employment.

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