[shelton]

Hi,

I am in the process of starting up a new commercial and domestic cleaning company on the South Coast.  I've already lined up one commercial and one domestic customer and am getting advertising, etc sorted out.

Unfortunately, there's a fly in the commerical ointment that I'm hoping someone can provide guidance on.  My commercial customer has had problems with their current cleaners for some time over the quality (or lack of) of their work.

I have quoted for the job, which has been accepted in priciple.  The problem has arisen since my commercial customer attempted to cancel their current contract.  The current cleaner (who works for an agency) is now claiming that he's entitled to transfer into my company under TUPE.

It seems a ridiculous situation, but everything I've read so far indicates that he has a case!  Am I going slightly mad?

The cleaner can't clean to the standards expected.  The Agency have chosen to do nothing about it.  They get their marching orders, but my new startup is now facing having to take on a sub-standard worker or lose the job.

Any advice (very) gratefully received.

 

[dustdees]

It depends what the contract the current cleaner has with the agency.

But all in all I think that you have to adhere  to this policy, not 100% sure tho.Couldn't you put him on another contract and get somwelse in to cover that job!!!!

I would have a word with the job centre, or something like ACAS they may be able to advise you on this matter.


Hope this helps

Denisexx

[CMS]

TUPE is one of those 'grey' areas that is open to a lot of interpretation.

In normal circumstances the cleaner would indeed have a solid case for transferring over to you. When I say in normal circumstances, I mean if they worked for a Contractor who had the cleaning contract and was employed specifically for that client.

As the Incumbent Contractor is (as you say) an agency I would challenge their right to transfer under TUPE legislation.

When someone starts work for an agency the conditions under which they are employed are normally such that they may be required to work at a number of different sites and for a number of different clients of the agency.

Only if the cleaner was employed by the agency SPECIFICALLY TO WORK ON THAT CONTRACT would they have any claim to transfer under TUPE. Ask to see the 'Statement of Terms and Conditions of Employment' which exists between the Agency and the Cleaner. If it doesn't state that they are employed solely for that position then they can forget it.

Furthermore, what is their length of service?

If it is less than 12 months they have no right to transfer anyway (even if they meet the criteria above) and if they did, they would have no claim at a tribunal if you then got rid of them through poor standards.

If they were employed specifically for that position and more than 12 months ago you may be forced to allow them to transfer but that is not the end of the world. They can be 'managed' out of the door.

Make it clear what is required of them and what will happen if they do not perform. They will soon leave when they find out they have to work for a living.

Read this

http://www.dti.gov.uk/er/tupe/consult.htm

Good luck.

[shelton]

Many thanks for your swift replies - very impressive!

I will seek to find out the length of service thus far and whether this is the gentleman's only source of work from the agency, as you suggest.

The thing I want to avoid, as a startup, is taking on staff at this very early stage and becoming liable for sick pay, holidays, etc.  I'm turned off even more as I know for a fact that the quality of the work is extremely low.  It's basically a hassle I can do without at this point in the business.

It's ironic, from my potential client's point of view,  that the reason for changing the cleaners is the poor quality, but they are potentially stuck with the same level of service from the same guy no matter who they get in to do the work.

Not being mean or anything, but the guy is at the high end of the employment age range (if you get my drift) and probably uses the cash to supplement his pension.  Trouble is, he simply isn't up to it.

I'll see how it goes and keep you posted.

 :

[seanc]

as far as i think tupe doesnt mean much read up as much as you can to cover your back but the best way of getting out of it is (be carfull it could cost you ) make them redundant and change the job spec as much as you can new title diffrent hours little things like that just make it a diffrent job hope you get what you want

[shelton]

OK, the situation appears to have been resolved somehow.

The resident cleaner has now been asked to clear his stuff off-site.  Turns out he was also getting members of his family in to help him out at the weekend who, obviously, will not be insured to work on the premises.

I think his age was a not inconsiderable factor too - he's in his 70's.

If anything else comes out the woodwork, I'll let you all know.

Thanks for all the responses so far.