[timeform]

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

[Tony_C]

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.

[petra]

That is right, I had to look into it a couple of years ago

[Jake]

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?  


                                   Jake : Westclean

[Happyeater]

Yup....crazy, eh?

[seanc]

can you make an employee redundant befor the sale of the companey and then the new owner employ new staff ?

[geogleam]

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

rachel

[Happyeater]

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.  

[Fox]

Hi

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!!!

Fox

[Keith_Lalanne]

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.

[Mike_Boxall]

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?

Regards

Mike

[Musicman]

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.

[Mike_Boxall]

Thanks - can you let me know if / when you hear the outcome?

Regards

Mike

[guru]

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.

[Fox]

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?

Fox

[Anj]

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.

[Londoner]

I was very involved in all this a few years ago when the company I worked for was broken up and sold off piecemeal.
The trouble with TUPE is that its all well and good in principle but if the new outfit just simply chooses to ignore it and doesn't care who knows it there is very little you can do about it.
Nobody is there to enforce the law and it takes a lenthy legal process which you have to fund yourself and the lawyers delay and delay until you give up.
Even if you win you only get a token award.
It is a law with no teeth if you are a victim. The big companies can just laugh in your face and they know there is nothing you can do.

[deborah5162]

I currently work as a cleaning supervisor cleaning a local firm,i have 2 girls with me.My boss has terminated the contract with this company,as they accused his staff of stealing the biscuits,which we didnt,He has told me under TUPE i can keep my job,i currently get paid £7.25 a hour,and work from 5.30 to 7.30pm.mon to fri.Does the new contractor have to pay me what i get now?and keep my hours the same?as i cant do mornings.i dont know who is taking the contract yet,but my current boss finnishes on next Tuesday.the other 2 girls are leaving.AS i was falsely accused of stealing ,im seeking legal advice about Slander and defamation of good character by this company will this cause the new contractor a problems??the company are now being unproffessional by telling me they may not pay my current boss.Any advise would much appreciated.

[Fox]

Hi Deborah

This is a difficult one and I don't want to give wrong advise but what you will need to find out is that because it is your employer terminating the contract and not the client is he not in effect making you redundant rather than passing you to the next contractor.

If TUPE does apply in this case and you are following a claim against the client it could affect the new contractor and cause problems, perhaps this is why your employer terminated?

Is there not another site that your current employer could transfer you to?  

[deborah5162]

No unfortunately he doesnt have any other contracts in the area,if he did i would definately stayed working for him as he`s a great boss.he terminated the contract as the client is impossible!,we have done everything to try and meet her demands,accussing his staff of stealing without proof,when its a large firm and everyone had access to these biscuits,that was the last straw!

[Musicman]

Deborah, as Fox quite rightly says, this is a tough one and I think you should seek the advice of an expert, maybe your first call should be at the Citizens Advice Bureau.

My gut feeling is that the reasons for the transfer, and which party terminated the contract is irrelevant. I believe the new contractor should take you on under TUPE, with protection of your wage rates hours etc.

However, reading between the lines, the client does not want you on site and my guess is that the incoming contractor will not take you on, or make your life there difficult - thus forcing you to leave.

Either way you will have a claim for unfair dismissal - whether outright or constructive.

In the event that this does happen you should follow it through the legal route - but get proper advice from a solicitor first.

I doubt you will get anywhere with the slander and defamation of character - but hey, it's worth a try.

This is an interesting one - would you be kind enough to let us know the outcome?

Musicman

[deborah5162]

Hi everyone,a update for you,I found out that GLOBAL got the contract to clean,I was told today that they changed the hours from a evening clean to a early A.M clean,which i cant do as i have 4 kids.Global are going to pay me a weeks money in lieu of notice.They claimed the Client changed her mind last minute,suddenly wanting a A.M clean.I wrote formally to the firm last week to complain about there unjust accussations against me and informing them i was seeking legal advice re slander and Defamation of Charactor,they havent even had the mannors to acknowledge the letter.Deborah

[Musicman]

Hi again Deborah, looks like you've been stitched up under the ETO clauses - Economic, Technical, or Organisational.

It would appear that the client and the contractor colluded to get you out. A change in the working time at such short notice is very dodgy.

If the need was there for the change in the shift time had it been discussed with your former employer?

My feeling is that a decent lawyer would rip holes in this and you would have a strong claim for constructive dismissal. It's down to you and the stomach you have for a fight - and whether you feel it is worth pursuing.

With regards to the contract in Reigate, I have spoken to Paul and he will contact the client tomorrow. The client is expecting his call and as long as he doesn't do anything daft the contract is his.

I'm just a little surprised that no-one else contacted me about it.

Musicman

[Fox]

Hi Musicman

Yeah looked into this myself as you know we have to be informed in this business.  From what I have read TUPE laws do not necessarily apply in this case.

Deborah is a direct employee of the original cleaning company and it is their choice to divert or cancel which in effect makes any dependant (eg: employee) their responsibility - TUPE can not be used to get rid of an employee (in effect called transferance) just because things haven't gone the right way.

At the end of the day we all have clients and staff that we would like to 'lose' (no offence Deborah) but to a law that is very rarely taken to the limit (but pretty grounded and strong in principal) to change things that either you want to avoid, or to make the next contractors life difficult is shi*/y.

I dare anyone on here to tell me that TUPE is something that does NOT benefit them unless it comes to terms and conditions and the only way that would affect someone is if they were so misinformed (sorry if your that person - but do your research next time) that they have not put the clause in their quotation.

Fox
(sorry if this post sounds to the point and harsh but I have to deal with the same situ many times and don't want to p**s around anymore)
Ps: Who does deborah sue? The current contactor?, The firm who has sub-contracted? or the previous employer? I'd be very carefull because this is so complicated not any one party is going to win.

[deborah5162]

HI Everyone, the company never discussed the need for a change in shift hours with my previous employer.According to GLOBAl they were advised last minute by the Client and the clieint was diberately slow in giving my employer details of the new contractor,he didnt recieve the details till this monday,GlOBAL have now offered me severence pay of a weeks salary and 2 days paid Holiday if i sign to say i take no further action against GLOBAL(Full and final Settlement)They also offered to do this to one of the other girls that worked with me.Im probally going to accept this.

[timeform]

re terms and condtions in the tupe law does concern start and end times i.e the old employer start time is at 17-00 to 19-00 and the new employer says the new times are 18-00 to 20-00 or is this breaking the law any help again please