Clean It Up
UK General Cleaning Forum => General Cleaning Forum => Topic started by: suffolkclean on February 04, 2010, 12:33:29 pm
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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
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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
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I have some useful info for you barbara if you want me to email it.
Dave
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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
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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
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what would i be looking for on her contract of employment?
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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
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Suffolk,
If you have no idea what you are doing, take legal advice!
Regards,
Rob
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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
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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
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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
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Dave & Rob I will post tomorrow once I have more information - Thanks again B
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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.
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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.
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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
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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
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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?
??? ::) ???
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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
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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
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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
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Hi Nick - This is what I was worried about she could be on the sick for a while & we end of paying it, what a complete minefield :o
I'd really apreciate you emailing me a list of questions - it is worrying me a bit.
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Hi,
I have a similar problem .
We have done a quotation last week, 10 cleaners, 2hours a day 5 days a week.
I told the site office manager that by TUPE rules we need to take over the existing cleaners
and she told me that she doesnt want that cleaners there because she was not happy with them.
Does TUPE apply on this case or not?
What should we do in this case?
Many Thanks
Sergio
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Sergio
TUPE will probably apply - it is not up to the client - as long as the contract is fundementally the same (which it is) TUPE will apply.
Basically, the law is clear, there are remedies for a failing cleaning service for the client to pursue as there are for contractors to deal with failing cleaners. Just "Getting rid of the staff" is not one.
Nick
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Another thing to consider with TUPE is how long the cleaner has been in place and what percentage of the total work that cleaner recieves from that site. TUPE follows the lines of the employment acts legislation when it applies as far as how long the cleaner has been cleaning on that site. If it is less than a year then it is easier to change the Terms and conditions of their contract or in some cases terminate their employment, but be careful of the wrongful dismissal legislatio. If it is between a year and two years you get a little grey area, and more than two years you have to take them on under their current terms and conditions. Some things are not covered under contracts so that is where you bring in your policies. Such as sickness notification times are usually not in the contract but part of an employee handbook. Some companies are to scared of tribunals to excercise their rights and fold to all the demands of the employee when it comes to TUPE. I recently took over a contract from the County Counsil, 6 cleaners 4 of which were in a Union. The union brought up TUPE and Tribunal every time I tried to do anything that would benefit the client. Some things I did not get away with and had to keep in place but others I did get changed and there was very little anyone could do about it. If you are sure you are right, stand your ground and make things work the way you want. In the end you are the one trying to make a margin.
Also if a transferred employee is working at another site for the current contractor and the site you are taking over comprises less than 50% (alot of people will say 60 - 70% to be safe) of ther work then TUE will not apply and you wil be able to get around alot of it.
If I can help sen me an email and I will try and give you my insight on the tUE transfers that I have done. What I have been able to change and what I have had no success in changing.
Gilbert
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I am not sure I agree to all Gilbert's advice - I believe that TUPE is not timebound in respect of how long someone has worked on a particular site but it is worth checking this out. I think that Gilbert is right about staff working in more than one site for the same contractor but again worth checking out.
Nick
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Nick you are right TUPE is not timebound in respect of how long someone has worked with an organisation before transferring a contract .
What I think Gilbert may be saying is when standing in the shoes of the former employer the same rules apply in regards to terminating a contract if an employee has not completed a years service. But again under the circumstances of a transfer stands a high probability of being classed as wrongful dismissal should an employee bring an ET case no real justification for their termination.
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I did not think so (Thanks CML) but this only goes to illustrate the need for specialist advice - I have been involved in quite a few TUPE transfers over the years- one is never the same as an another. So if there is one bit of advice - Speak to a specialist!
Nick
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Estimated awards for wrongful dismssal cases. ET has discretion up to £25,000.
Things taken into consideration are: whether notice or the correct contractual notice has been given before termination, no discriminatory aspects, no breaching of employment statutory rights etc., Not to scare you but all cases are individual and awarded on their own merits. The main point is that if you do not get dismissal right during TUPE it could be costly.
(Discrimination Awards - has no monetary limits). I hope this helps
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Actually the max limit for unfair dismisal is a lot more, I believe it is around £76k
This is something that I was sent as a member the CIM, the regs changed last year
2010 Award Limit £76,700 (ie £65,300 compensatory award plus 30 X £380 for maximum basic award) from 1st February 2010 (the maximum limit on compensatory award is reduced on 1st February 2010 but there is no change in basic award. - The main change in effect from 1st February 2010 is a reduction in the limit on compensatory award for unfair dismissal from £66,200 to £65,300 in line with the 1.4% reduction in RPI for the 12 months to September 2009 (Employment Rights (Revision of Limits) Order 2009, SI 2009/3274 and see notes at Indexation of awards and/or Compensation/2010 limit changes ). There is no change on 1st February 2010 to the £380 per week limit on week's pay which was introduced on 1st October 2009."
Ouch............!!!!
However, to put it into proportion the average award is about £6k to £8K. So it is important to get it right - get advice, follow it and then it is straightforward.
Hope this helps
Nick
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Nick I agree the awards for Unfair Dismissal are statutory awards and have a monetary frameworks as a guide. I am mindful not to confuse matters because this award takes into account a number of compensatory aspect including loss of earnings until finding alternative employment and all sorts.
However there is a clear distinction between awards awarded for wrongful dismissal and unfair dismissal. In regards to employees not completing a years service who find their contracts terminated on TUPE without a real and legitimate jusfication for doing so those employees will fall under this banner. Employees falling outside of this (having completed at least one year service) will fall into the unfair dismissal statutory award criterion. Therefore advice is absolutely peril.
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Yes CML you are right - Unfair and Wrongful are entirely different - I think we have now covered every eventuality!
Nick
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Hi Dave,
have you got a copy of the letter that you send to the other contractor?
Can I have a copy please.
Many Thanks
Sergio
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.