Clean It Up
UK General Cleaning Forum => General Cleaning Forum => Topic started by: Musicman on October 08, 2004, 09:27:30 pm
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Hi guys, for once I am seeking advice as, for all of the years I've been involved in the cleaning industry, this has never happened to me before.
I've recently been awarded a contract and have contacted the outgoing contractor for TUPE information. Despite reminders of their legal obligations I still have not had any documentation.
The contract has been up and running for four weeks now and I've reached the point where I realise that I am not going to get the necessary information.
I do not wish to involve solicitors as their costs for doing what I already have done are prohibitive.
As I have since won another contract from the same company and have tendered for a couple more sites that they do I will be faced with the same problem on at least one more occasion.
I can't see BICSc (waste of space IMHO) being of any use.
Where do I go from here?
Any ideas?
All help greatly appreciated.
Musicman
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Musicman
This happened to me one time I got the FSB legal help line involved. i.e. Solicitors but not the cost.
Good luck
Cheers
George
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Hi Musicman
There is a department of the DTI that deals with disputes over TUPE. I did a quick search on the DTI website for you - I think the number you need to ring is: 020 7215 2620
Perhaps you'd let us know the outcome as I'm sure it must happen all the time.
Regards
Mike
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Thanks George and Mike, I'm very grateful for your input.
I've never experienced this before and haven't heard of it happening to anyone else either.
The company in question is a fairly sizeable national outfit so they really should know better.
Perhaps other members have had it happen to them - interesting to find out.
Thanks again.
MM
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MM
Although mine was the other way round, the company (very big) who took the contracts did not approach me only the cleaners.
I wonder why? Double side coin = don’t give info too soon problems for the incumbent Co or the out going Co gives miss information, very sad I know!
If you get no joy, each employee should have a copy of there contract terms and conditions etc, and you take it from there, sorry I cant be of more help.
Len
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I've taken over quite a few contracts over the years from the large companies, and have NEVER had any employment details forwarded to me, despite repeated requests. The only thing I could do was ask the employees what rate they are on etc, sure I've been lied to on at least one occasion.
Lens idea of asking for the previous contract is so obvious I never even thought of it, so thats what I'll do next time.
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this is a common thing, where the outgoing contractor does not communicate with the incoming cleaning company and trys to use this to provide service disruption.
i have in the past asked the client to call the contractor and this sometimes works.
the other case is where the outgoing contractor rams info down your throat, again in an effort to cause disruption.
regards
martin
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Hi Musicman
Been in this situation from the other way round. it turned out the company did not employ cleaners only sub contractors on a self employed basis and therefor didnt have any obligations with respect to NMW, TUPE or insurance ect. This company discribed itself as a cleaning MANAGEMENT company or AGENCY. Thinking about this myself as no P45, P46, P60, PAYE, FTaxCredit, proof of ID or any other time consumming, costly admin. How can we compete with this.
Cheers Mal
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i used to work with one of these franchise type companies, and the TUPE obligation does fall upon the company who has won the copntract, it is their responsibility to deal with any TUPE implications, prior to the contract start, irrelevant of whether they sub contract the work to a self employed cleaner or not.
if the TUPE is not settled prior to the work starting then the outgoing operatives, have a valid case against both the MANAGING company and the new sub contractor, and this has infact been tested in court.
Just because a company is a services managment company, rather than a direct employer, does not mean that they can bypass the legislation.
hope that helps
regards
martin
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Musicman
I am in the process of a TUPE transfer where the existing contractor has supplied me something (which makes a change), but has blatantly lied on the info given. IE he has put on there that all staff get 20 days holiday per year (some get 23!) but when I spoke to the staff yesterday they informed me they get 10!
Surely this can't be legal or does TUPE work on a 'what goes around comes around' basis and you then stiff the next contractor who gets your business?!
The other thing my TUPE staff have been told that if they take any holiday between now & when we takeover they will be sacked! Can I do anything about this?
Regards
Tim
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Hi Tim, firstly if the cleaners work 5 days a week they have to have a minimum of 12 days a year as (I think it's) The Working Time Directive states a minimum of 20 days. Sadly most companies in our industry uses the 8 Bank Holidays to use some of the entitlement up - thus leaving 12 days. This is due to change soon so all staff will have (pro-rata based upon 5 days a week) 20 days PLUS Bank Holidays.
The taking of holidays in the interim period issue is pure B/S. As disciplinary/dismissal procedures have just been tightened up any employee that would be sacked under such a move would automatically win if they took the outgoing employer to a Tribunal (average payout I'm informed is around £3.5k).
You main question relates to what I was getting at in my original question ie 'who governs infringements in TUPE transfers?'.
I guess that Mike's advice was the most appropriate in referring any questions to the DTI and see what they can do.
I hope this helps.
Musicman
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thanks for that mate, I'll give the DTI a call
Regards
Tim
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hi
only a newbie but maybe this will help for next time,
i joined the f s b recently, three reasons only, tell a lie four reasons
1
they can give advice and deal with all your employment issues as part of the package
2
they will deal with tax audits as part of the package if you get one
3
they offer discounts on holidays ( dont say whats a holiday)
4
they are cheap and could save you thousands
see newbies have there uses, its not all cribbin for ideas
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Musicman
I have just signed up with a company called Penninsula who take on all your personnel issues. They even are going to write up a employee handbook just for us. On top of that you get access to their 24/7 helpline which has lawyers, ex union chaps and the like available. They then give you the advice and then (this is the best bit), if you have followed their advice they will take on the issue if it goes to court and pay out of if you lose! We have signed up and now we feel that we are the employers and they are the employees!!
If you want a contact number for these guys let me know, it is cheaper than you think!
Regards
Tim
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When you first tender for the contract ask the prospective client to give you the information let them do the chasing
i have even had a client withhold the outgoing companies
final payment. Check signing in books, ask for payslips or proof of payment from the cleaning staff. Any problems with the staff send them back to the previous employer.
Remember they may have to give you the TUPE information,it does not have to be correct, do your own checks as above.
good luck
Steve
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Can anybody help? If a cleaning company lost a contract do the cleaners have the right to TUPE regulations or does TUPE only apply if a business is sold.
Kev@KL Cleaning
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Both
Len
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its one of the biggest areas of concern in the market.
and cause huge headaches especialy for the client. there are two reasons why clients change companies, one - price two - service.
then when you tell the client that tupe is in play and they will have the same cleaner, they are horrified beacause they think they will get the continued poor service. So you then have to manage the situation.
so good luck
regards
martin
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Yes the reasons are poor service. so I have an uphill struggle, what I saw of there cleaning was some what hap hazard
Thanks for your replies :(
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Martin
Not if the cleaner jacks in, a win win scenario. But if not ask for there T&C, I once had they were entitled to bank holidays plus the holiday entitlements; they even set the citizen advice on me.
At the end of the day the customer = price = what is achievable within the time frame
Best of luck
Len
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On transfer of Under takings of any business it means in simple terms that you take over that business/contract as it stands , that includes staff ( and thier service).
Always be carefull in this situation as you may end up in court.
Paul
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But is it true that if you offer the cleaner a pay rise = new contract this then if they accept it voids TUPE?
Debbie
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Len,
i agree, however these cleaners seem to be getting wise to this, and some cleaning companies will attempt to pay the cleaner off on a full and final settlement, similar to redundancy.
the operatives then win inthis case, as they get paid off by the incoming cleaning company and then start another site with their original employer.
the other thing that has been done in the past is that the cleaning times have been changed from morning to evening, and this has constituted a large enough contract change to make the original position redundant.
but as you say this is a minefield, ironically it was brought in to protect large teams of cleaners ie schools, airports etc. and now we are all in the frying pan.
regards
martin
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Don't be fooled into thinking that by changing the pay rate for someone under TUPE it will void their contract. If you bring in another contract (even if it has got better pay) the employee has to agree to all of the terms and conditions before they can be transfered to it. You can enforce a change of contract onto someone but to do this you would have to dismiss them first then re-employ - giving the employee a chance to claim unfair dismissal!
TUPE is designed to keep employees safe but can cause terrible problems for the employer. At present I am finding out just how many!
Fox
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Martin
Incoming cleaning company pays them off? They must have money to burn; there are other legitimate ways of skinning a cat. ;D
By the way forgot to add re citizen advice I won! ;D
As you say it was brought in for the large teams, luck for me I was not in that league, saying that, it’s surprising the thought of a new broom run and scatter.
Len
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So does that mean that a company can never get rid of rubbish cleaners because
TUPE protects them.
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KL
How long have you been in the game?
Take this as a scenario paid by the hour not by the clean, employee contracted to work for 3 hours 5 days a week left ½ hour early each day, if you follow the correct procedure I would be surprised if you would have a problem, the list is endless it depends on circumstances.
I totally believe in employees rights but it’s a two way street.
Also noted you mentioned poor service and noted there cleaning was hap hazard, let me give another scenario poor service from cleaning contractor but great cleaner no equipment to carry out tasks.
Len
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Hi Len,Was a area supervisor for ten years,I've been self employed for three years never had to deal with TUPE, cleaners have gone with thier company or the clients had thier own arrangments. I think i've been lucky up untill now.
KEV
PS your www doesn't work
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Hi
Len is correct many ways to skin a cat! If you decide to use the disciplinary route because of poor performance, time keeping etc make sure you follow the procedure on the contract they have transferred with, don't automatically asume they are exactly the same as yours.
Also when quoting for work ensure you put a provision in the quotation that states it does not provide for the provision of TUPE.
Fox
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Kev
it's down a the moment
Len
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I've been watching this thread for a while without passing comment as I have written extensively on TUPE on this forum in the past but now feel that I'd like to add my two penny's worth.
You can enforce a change of contract onto someone but to do this you would have to dismiss them first then re-employ - giving the employee a chance to claim unfair dismissal!
What you on with Fox? ;)
Once they are your staff you can vary pretty much any term and condition within a transferring cleaners contract (with the exception of sick pay/benefits I am advised) as long as you give sufficient notice of the change and follow the correct procedures. This means that you don't need to dismiss them. My advice however would be not to tie the changes in with the transfer, let the contratct have chance to settle down first.
The notice period required is in line with redundancy - i.e. 1 week for every full year's service up to 13 weeks.
ETO (economic, technical or organisational) changes enable you to effect any alterations to the working structure - shift times and duration, staff numbers, working practises etc.
For example a few months ago we secured a small contract where there were 3 cleaners each working 2 hours a night, 3 days a week. The client wanted to change the pattern to a 5 night clean but with only 2 staff @ 2 hours per shift.
Through a series of meetings we have been able to make the necessary changes - and without losing any of the cleaners involved.
With regards to inheriting poor cleaners our view is that we will re-train, give documented work schedules, usually a pay rise, the right equipment & chemicals for the job and a high level of management support. If this doesn't work we go down the disciplinary route - although the crap ones usually disappear within a few days - must be a sixth sense.;D
With the new disciplinary/dismisssal procedures any attempt to pay staff off would be considered as a breach of procedures and a second pay out would be guaranteed.
Kev - just to confirm your thoughts - yes you have been lucky, VERY lucky!!
Hope this helps.
Musicman
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Hi Musicman
Haven't seen you around for a while hope things are going well. Yep still taking the pills! There the ones you recommended remember? lol
When I was talking about changing terms and conditions and dismissal I was talking mainly remuneration as that is the area that an employee would kick up a fuss about if it meant loss/change of hours/pay/holidays/sick pay etc. However I think you will find that you do have to negotiate with the employee over any change in the contract. It is when negotiation does not solve the issue and as an employer you still want to enforce the changes that dismissal/re-employment could happen. I don't think an employee would argue the toss over your change in disciplinary, grievience or security though! Even if they did, as long as you follow the correct legal procedure there is no case.
I am at present going through a complicated situation with TUPE I have currently got employment lawyers dealing with it for me so at this moment in time as you can imagine I know the ins and outs! I to used to think that giving sufficient notice for changes in contract was enough, but believe me it is not! My advice - do not make variations in any form without written agreement from the employee. If negotiation was needed to reach the final decision of the change ensure it is listed and agreement signed also.
Fox
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Hi again Fox, have been watching from the sidelines as the fresh batch of 'newbies' have been finding their feet. Things still good up here thanks - keep managing to avoid the bullets!!!!
The negotiations that you refer to are part of the series of meetings - that should be minuted, typed up and signed by all.
To put all of the processes on here would be exhaustive but one of the things you must do is to give the employees the opportunity to come up with their own ideas about how the end result can be achieved.
The fortunate thing for us in my example was that one of the cleaners was thinking along the same lines as ourselves - so it was 'their idea' that was implemented.
The following advice was given by a Union rep so may help you. If a client withdraws permission for a cleaner to be on their site you have to remove them. You must then try to find them an alternative position - similar area, hours etc. If no alternative can be found then you have to let them go, you do not have to keep them on your payroll until a suitable position can be found.
Could anyone prove that you instigated that request? ;)
Good luck, if you run out of pills I have friends of friends... ;D
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Hi All
There are several commercial contract cleaning company's (They usually have company name like ?????? cleaning Management or ?????? cleaning Agency.) at work in the UK that dont employ cleaners. Only on a self employed basis. Their advert in the jobs section goes something like " cleaners wanted in ****** area on a self employed basis. This is an oppurtunity to run your own contracts!" . This is another advantage to the cowboys, i.e no cleaners - no TUPE, NWM, P45, P46, P60, PAYE, NI, employee insurance, no grief. They have been taken to tribunal in Northampton and got away with it.
Cheers
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regarding these agency companies.
who would take who to court, are you infering that the sub contractor has taken the cleaning agency to court because they 'the cleaning agancy' has lost the contract, and the subby then doesnt have a job to clean?
in my experience, agency companies, try to wriggle out of tupe on a winning contract basis, ie dont want to inherit the cleaners, cause as you rightly say they dont employ.
secondly when they loose contracts, they generally dont apply tupe to the incoming cleaning company.
therefore the subby then has to pursue any claim, and if they continued to clean and claim agsainst the new incoming company, then they would have a good argument.
regards
martin
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Without getting in to too much detail, I've just been fined at a tribunal for a breach of the TUPE law.
I was successful in being awarded a contract I had bid for and was told on the 6th of the month. I met two members of the cleaning staff on the 9th. During the meeting I informed both cleaners that they were entitled to their current jobs and their terms and conditions would remain unaltered should they wish to come to my business. I said that they would have to supply a copy of their current terms and conditions of employment so I could continue with it.
During the conversation, I explained that by working together (I would have to recruit another 2 cleaners as it was a four cleaner job) we would make a difference. I explained that as the two new cleaners would be under our normal terms and conditions but this wouldn't cause any difficulties etc.
I received a telephone call on the 14th from one of them to say that they had considered what I'd told them but they would rather stay with their current employer as they'd been there years and had been offered alternative employment. I therefore recruited 4 new cleaners and started the new contract.
Two months later I get an IT1 from the tribulals people. I was getting sued for constructive dismissal. Why? cos they wanted to keep their jobs.
At the tribunal these two (one had come as a witness) told the tribunal that I had not offered the same terms and that I had insisted that they come under my normal terms etc. They lied. The one who called me said that she had never called me. Another lie. I had asked for her phone records, the tribunal said that this was not something she had to do. How else could I prove or disprove it? She did say her phone was a pay as you go and no itemised bill was provided. I was asked why I had not confirmed in writing that she was not going to join us, if I had recieved a call!! What a load of cack. They argued that I had no intention of employing them as I had not requested TUPE info from their old employer. Why should I ask for it if they weren't coming across to us?
With a witness who lied and no phone record provided, the tribunal believed them. I was fined £1500 and had to pay to someone who hadn't even filled in an application form. Be warned, use a recorder in all TUPE and disciplinary meeting with staff. The tribunals are not pro - employer.
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Glad I don’t have to deal with this type of agro any more; regarding recording I think you will find that you have to inform the person/s that you taping the conversation and if they don’t want it taped, not a lot you can do about it.
Len
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Hi Len, I do inform them but just dont give them much of an opportunity to say 'no.'
The law is an ass, mate. We employers need to protect ourselves against the scum that have now decided to 'sue' for a living.
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No argument from me re law, or what you are doing taping that is, I had a similar problem over HS cleaner got a shock of a cable and wanted to sue, luck for me the customer also used the Jan cupboard for storage and noted all signs/info which were pined on the wall were missing, they were there the day before!
Though I’m not into the commercial side any more is the law changing that that the cleaners, will get bank hols off as a part of there hols entitlement and not pro-rata as before.
Len
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hi there,
i have always dealt with TUPE by means of having everything written and signed by both parties.
the other thing would be that i have never started a contract until all tupe is fully agreed.
regards
martin