[suffolkclean]

I have been contacted today by a potential customer I have been trying to get work from.
Her building has contract for a cleaner 2 days a week, she is unhappy with the cleaning company but happy with the cleaner who also cleans another site linked with this one. Apparently they sometimes swap over one of the 2 days with the other site for flexitbility.

I'm visiting the site tomorrow to get more information but I'm being asked if they cancel the existing contract & we were to win it can I employ the existing cleaner. She said the cleaner is only employed to clean the 2 sites so if they lost the contract they wouldn't have any work for her (but she obviously dosnt know that, shes thinking the cleaning company would have to let her go if they lost the contract)
I have NO experience of this - can this be done?
Barbara

[Pristine Clean]

Er very tricky.

We are in the process of TUPE with many employees at present.

Now you will need to check things out Professionally - by a solicor that deals with TUPE. As each TUPE situation has to be veiwed on its own merits.

If you take on that contract, you need to veiw there existing employment contract. If you take her on their employment contract transfers over. You cannot alter anything. even at a later date if you alter there contract you could be in breach. - time has no baring on TUPE.

There is a way out, its known as an ETO reason. EconomicaL, technical, organisational reasons If you can prove any then you can make them redundant YES you wouyld need to pay redundancy. Its what the lager companies do and get away with it. But they have excelent solicitors.

As for the other cleaning company taking her back, no they do not need to. But may well have other work lined up for her. She may be working a 39 hour week at different sites for the contractor. This is stuff you need to find out.

You will recieve all documentatiion within 14 days of the transfer from the existing contractor, if not they are in breach and face a £500 fine. Easy.

Dave

[Pristine Clean]

I have some useful info for you barbara if you want me to email it.

Dave

[Pristine Clean]

Are you wanting to employ her?

If so I read that wrong.....sorry Yes you can employer her. Thats what TUPE is all about.

But and there is a BUT

She might not want to move over. She can opt out of the transfer.

Read her contract of employment before submitting a quotation

if you would like me to talk to you direct I am happy to do so.

Dave

[suffolkclean]

Hi Dave - Thanks yes if you could email me any info you have that'd be great
kesgravecleaningservices@yahoo.co.uk

Can I really ask to see her contract of employment? I'll visit 2mrw get as much info as poss & I will call you if thats ok, if you could put the best tel.no to get you on, on the email
Many Thanks
Barbara

[suffolkclean]

what would i be looking for on her contract of employment?

[Pristine Clean]

Her T&Cs, they will probably be different from yours.

Her hours and times. might not suit you.

Pensions - Other stuff like bonuses - you would need to pay these.

You will also need to follow all of the disiplinary procedures laid out in her contract. - not your procedure.

Also check to see how long she has been at the company. If you take it on and they at a later date end the contract you are responsible for the redunancy.

Her tasks might not be the same as your task. - she does not need to do anything that is against her contract.

I can give you some guidence on it, but I must stress professional advice is a must so every angle is covered.

Dave

[Robert Parry]

Suffolk,

If you have no idea what you are doing, take legal advice!

Regards,

Rob

[suffolkclean]

Hi Rob
In which order would you do it, Quote First, If Successful Then seek Legal Advise obviously we don't want to pay for solicitors until we knew our price was accepted for the contract?
B

[Pristine Clean]

Yes intersting question I would like to know that...especially from Rob.

He makes it worth while doesn't he.

We quote first taking all things into consideration... but how will you price for redundancy without knowing how long she has been there?

We now use an out sourced HR.

Dave

[Robert Parry]

Your quote should contain a clause that tells your prospect that your price etc, does not take TUPE into account, and that your price etc could vary depending on the exact contract that any employee who transfers over under the regulations is on.

I would also consider the reason that your prospect wants to change, why is she happy with the present cleaner, but not the company?

Although Pristine has given you his take, I would be very wary of taking this down the ETO route, without solid legal backing, although Dave is correct, in stating that its standard practice sometimes for the big players, they can indeed afford to bend the rules and pay the fines!

Regards,

Rob

[suffolkclean]

Dave & Rob I will post tomorrow once I have more information - Thanks again B

[cml]

Caution  'Like cleaner not the company'.  Seems a bit personal, what is so special about this cleaner if she is working to rule.  If she likes the way this cleaner works then  there is a high possibly that this is the way the company work to rule and should be a happy result for this client.

As advised check all contractual terms of employment and seek legal advice before committing to anything.

[newbroom]

Surely a more economical way to get legal advice is to join your local chamber of commerce or FSB. Both provide a legal helpline as part of the membership.

[Nick Head]

Barbara

In theory, if you are happy with all the T&C and you are clear on your legal position, TUPE is relevantly straightforward. Well that is the theory!!!

Get some proper specialist legal advice - Robert is right you can only use the ETO route if you have the legal entitlement to do so - it certainly is not a work around. TUPE can be a minefield if you want to change anything about a "transferring person's" employment and penalties could cripple you.

However, for a contract of this size is it worth spending a lot of money of lawyers? I am not sure that the local chamber of commerce or FSB would be able to give the necesary specialist advice but certainly worth a try. You could also try Business Link (their internet site is very helpful).

Also I agree with CML it seems a little odd that your prospect likes the cleaner and not the company - but there maybe to good reason for this but worth trying to find out why.

Good luck!

Nick

[gordonswindows]

 Barbara

As expressed by all TUPE is a bit confusing but the good news is before you quote, if invited to tender, you can gather every bit of information from the present employer about the staff contracts terms etc under what is called "due dilligence" this then allows you to decide what to do before you commit to a price etc

Listen to the others it is all good advice

Gordon

[suffolkclean]

Ok - She said theres been problems with cleaners sent in the past, then got a decent one & she's now in hospital & won't be going back to work (not sure how she knows this)

So shes saying she carried on with the contract as they were finally happy with the cleaner but now she won't be back at work then its a good point to cancel the contract. Where do I stand now?

  :

[Nick Head]

B

In theory TUPE could still apply but is unlikely to, as long as the cleaner has not been replaced. I would recommend you get clarification on whether it applies or not from your prospect.

Nick

[Pristine Clean]

If the cleaner is in hospital and wont be going back you will have to cover the contract untill you recieve all the info from the present contractor.

1. you need to know if you have won the contract
2. if you have won the contract, get the client to forward contact details of the present cleaning contractor.
3. write to the contractor (recorded delivery) stating that you require all the details.

 1. Ask if the member is wishing to TUPE over to you and if they can confirm this. The employee can opt out of the transfer.
 2. employment contract of the staff member that is employed for that site.

What now you are presented with is this,

1. the contractor is not obliged to send you confirmation saying that they are not transfering over. So if you do not hear within 14 days. They face a fine if employee are transfering over. You could telephone but a letter is more reliable and proof that you have followed all of the prerequisits.

I would also place the TUPE REGULATION Guidence notes in as well. On the letters I send I also state clearly from ACAS that they face a £500 fine if information is with held.

Dave

[Nick Head]

Sorry I misread the bit about the lady being in hospital etc.....

If she is still "employed" by the existing contractor then TUPE will apply - and here is the killer - if she is entitled to SSP - guess what - you will have to pay it plus any other accured benefit. You must ensure you get all the information you need from the existing contractor.

If you want a list of questions to ask - email me

Nick