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Posted by timeform (timeform), 23 March 2004
can any one tell me what the law is on tupe how long do you have to work before you are covered by this law also any more info i would be greatful
Posted by Tony_C (Tony_C), 23 March 2004
Employees employed by a previous employer when an undertaking changes hands automatically become employees of the new employer on the same terms and conditions. It is as if their contracts of employment had originally been made with the new employer. Thus employees continuity of employment is preserved, as are their terms and conditions of employment under their contracts of employment.

I believe you are covered by this law from day one.
Posted by petra (petra), 29 March 2004
That is right, I had to look into it a couple of years ago
Posted by jake (jake), 30 March 2004
Just a thought, what if an employee's work was so poor, it helped their employer lose the contract!, would the new company still have to take them on?  Huh

                                   Jake : Westclean
Posted by Happyeater (Happyeater), 30 March 2004
Yup....crazy, eh?
Posted by seanc (seanc), 1 April 2004
can you make an employee redundant befor the sale of the companey and then the new owner employ new staff HuhHuhHuhHuhHuhHuh?
Posted by geogleam (geogleam), 1 April 2004
I suppose that could happen, but it would be down to the previous company and if they have lost the contract, they are hardly likely to bother.  I had this situation about a year ago when I took over a large contract and inherited 5 very unhappy staff who claimed poor standards were down to poor management.  I did everything I could to make these people happy and work more efficiently but all they did was whinge and moan about how badly the previous company had treated them.  In the end I had to try and manage them out over a period of time by issuing verbal then written warnings about poor standards, poor attendance etc.  I finnally got rid of 4 of them at once when they failed to show for work as their pay cheque was a day late.  I told them this was gross misconduct then they took the huff and walked off site there and then.  At long last good riddance.  This tupe lark can be a pain

Posted by Happyeater (Happyeater), 1 April 2004
No, can't make redundant as the job still exists. If you do you're wide open for a claim.

Basically, you have to take the incumbant cleaners. After you have them (on the same terms and conditions) then you can work them out by following the recognised disciplinary proceedure.

Hope this helps.  Smiley
Posted by Fox (Fox), 1 April 2004

TUPE is a minefield, I have been working with it for a long time now and still don't know everything but I will try to explain how I work with it.

When you are awarded a contract that is already fully staffed you will need to write to the current contractor with a TUPE form - this can be a simple spread sheet where they fill in the information, eg: name, NI number, tax code, address, telephone, rate of pay and holiday entitlement.  The contractor can only give you this information if the employee agrees.

I normally then hold a meeting with the employees on site to introduce our Company and explain our procedures.  

When you take on staff within the TUPE regs you take on their exsisting contract of employment.  This means pay rates and holiday entitlement stay the same, however if the employee is undergoing disciplinary you will also have the right to continue with this from the stage the last employer left it.  Also if the employee is taking any action involving their employment you will be liable to carry that over also.  So always make sure you ask the question and find out if this is the case.  You may not want the contract if it means you may be liable for a payout to that employee.

Once you have taken on the staff I believe after a 'reasonable amount of time' you can give notice to change the terms and conditions within their contract.  This usually happens if the client wants a cut in cleaning services and it affects the employees hours.

Having said all of that if the cleaners are not up to standard and the previous management has been poor when you take over a site and start doing things properly with supervision etc the cleaners will find that they are now expected to work and leave anyway!!!

Posted by Keith_Lalanne (Keith_Lalanne), 2 April 2004
It can also be a bit of a minefield when you are the incumbent contractor and get a TUPE request from a competitor. If you give the number of staff, wage rates and hours worked you may as well hand over full details of your contract which makes it extremly easy for a competitor to price their quote accordingly - already knowing how your quote is likely to be made up.

You are obliged to give this information but you are not obliged to give it before the contract has been awarded.
Posted by Mike_Boxall (Mike_Boxall), 2 April 2004
Here's a question, then.

I've seen a copy of a national contractors terms and conditions and they state:

The customer warrants, covenants and agrees that during the term of this agreement and within 90 days after termination of the agreement (for whatever reason), the customer will not knowingly engage in business, employ, or solicit the employment of any employees, franchisees, sub-contractors or agents of x)

Does this then mean that if a company was to bring the cleaning in-house TUPE would not apply or is this in breach of the regulations?


Posted by Musicman (Musicman), 2 April 2004
That's a good question Mike. I am aware of someone who is taking legal advice on this matter with a view to compensation when the customer decided to go 'in-house' and took the cleaners across to their employment.

I think that the outcome will be that the law of the land (ie TUPE regulations) take precedence over a company's terms and conditions, and therefore it will not be worth pursuing.

I believe that there is also a piece of legislation along the lines of The Unfair Clauses Act (something to that effect) and it is possible that such a term could be challenged under that Act.

Hope that helps.
Posted by Mike_Boxall (Mike_Boxall), 2 April 2004
Thanks - can you let me know if / when you hear the outcome?


Posted by guru (guru), 2 April 2004
Smiley If a company goes in house using your cleaners if your contract with them prohibits it.  Although you can not stop them TUPE, you would be within your rights to claim compensation for being cut out if the loop. The company still has a contract with you and must abide by it.  I feel it would not be unreasonable to claim one years profit from the client as if you had kept the cleaning contract.
Posted by Fox (Fox), 2 April 2004
I have had this happen to me and frankly I was pleased to be rid of the client and cleaners!!

Hardly anyone has inhouse cleaners this day and age and I had this particular client phoning me a couple of months later saying it was a big mistake! Ha ha.

However we did run the contract at almost cost price to begin with so lost out on our profit.  It is a very difficult and lengthy proccess to drag the client through court for loss of profit, there is no evidence of works carried out and charged and the client can always say that the management did not do their job therefore forfited the contract regardless of the clause and can then cover the cleaning in anyway they wish.

Unless you have a solid paper trail - eg: quality control signed by the client - it can be very difficult to prove that you carried out the works as per spec.

So at the end of the day these things happen and yes TUPE is there to protect the employee regardless of who the next employer may be but the comfort factor is that inhouse cleaning rarely works after contractors have been on site, they just haven't got the knowledge to run it!  So who gets the last laugh?

Posted by Anj (Anj), 3 April 2004

In a transfer of an undertaking an employees rights is to have their existing contract and benefits continued with their new employer, these cannont be changed if the reason for the change is the transfer itself but, if a genuine need arises to change the contract on a basis of an Economic Technical or Organisational reason entailing changes in the workforse then this can be justifiable.

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