TUPE Question.

Castiel

Castiel

Castiel

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My wifes firm currently have a contract with a cleaning company to clean their offices, the cleaners are not doing the job to the required standard even after several complaints and requests to the contractor to remedy the situation.

So she has decided to cancel the contract with that company and hire another, but here is the issue, the current contractor are saying that my wifes firm have to supply the information of the new cleaning company so they can TUPE their staff across....

This kind of defeats the point of getting new contractors if my wifes firm are forced to keep the current staff, I am not sure that TUPE even applies in this case or whether my wifes firm is obligated to either forward those details requested or accept the movement of the same cleaning staff she no longer has faith in?

What are her options, I'm not near a computer or at work so can't really research it myself...OCuk to the rescue?
 
I would simply terminate the contract in accordance with the contractual stipulations (i.e. notice and any lump sums etc.) and then hire new contractors. I cannot even imagine how or why any legislation would exist that involves you in a TUPE in this situation - you contract for services from an organisation and how they manage or employ their staff should be none of your concern.
 
From ACAS :

The Transfer of Undertakings (Protection of Employment) Regulations (TUPE) protects employees' terms and conditions of employment when a business is transferred from one owner to another. Employees of the previous owner when the business changes hands automatically become employees of the new employer on the same terms and conditions. It's as if their employment contracts had originally been made with the new employer. Their continuity of service and any other rights are all preserved. Both old and new employers are required to inform and consult employees affected directly or indirectly by the transfer.

This does not apply as you are not transferring the business but instead cancelling the contract and starting a new one with a new company.
 
ACAS :

Which transfers are not covered?
TUPE does not apply to:
1 transfers by share take-over because, when a company's shares are sold to new shareholders, there is no transfer of the business: the same company continues to be the employer
2 transfer of assets only (eg the sale of equipment alone wouldn't be covered but the sale of a going concern including equipment would be covered)
3 transfer of a contract to provide goods or services where this doesn't involve the transfer of a business or part of a business
4 transfers of undertakings situated outside the UK.

Your wife's contract is a business contract for services and she does not form any part of the contractors business or employment requirements. This is a transfer of contract and not of the business unless your wife's business is their only client and they could be deemed to be transferring the whole of the business to a new employer. The owner of the cleaning company would effectively be selling his company and business to the new contractors and would have to TUPE his staff into their business.

http://www.acas.org.uk/index.aspx?articleid=1655
 
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Moses said:
What's the reasoning for TUPE not applying?
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TUPE (simplified) is to protect employes when ownership of their company changes hands.

The scenario above isn't anything like that - the OP's wifes company is simply stopping using a cleaning company because presumably, they are not very good at cleaning. The staff of the cleaning company have nothing to do with the fact their employer has lost a contract with the OP's wifes company.

EDIT: this is on the basis that the cleaners are employees or contractors of a cleaning company, which your wife hired.
 
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OK I will rephrase.

You run a small office. You hire "EZclean" to clean it. "EZclean" turn out to be rubbish, so you end the contract, and bring in rival cleaning company "hooverwizards" instead. End of story.

That has nothing to do with TUPE.
 
Moses said:
So you're talking about business transfers, but numerous hits which come up when Googling "tupe cleaning contracts" which back up the second of those two things?

http://www.direct.gov.uk/en/Employment/RedundancyAndLeavingYourJob/DG_10026691, for example, is where that quotation's from.
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I believe from the various random convos I've had with my gf in the past (who has handled TUPE several times) that the difference is the cleaners aren't being transferred over. So the service contract isn't being transferred to another company where the same people will be providing the service.

If that makes any sense.
 
I'd like to believe TUPE doesn't apply because it's frankly stupid, but I suspect it does.

Requiring legal advice to change your cleaner - only labour could draft such a super fantastic law.
 
Lucero said:
TUPE won't apply here. Tell them to do one!
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My brothers company lost the contract to distribute the music and films for asda, he had the right to go work the company who won the contract, he was protected under TUPE and was offered a generous redundancy package to avoid threats of constructive dismissal (the new contractors warehouse was 300 miles away).

I think it applies, the direct gov site clearly says it does.
 
I'm with Telescopi on this. It seems a little dodgy and the Direct.gov website does say:
Direct.gov said:
If you are employed by a contractor (eg in catering or cleaning) who loses a contract to another contractor, you should turn up for work as normal, unless you are told otherwise. You and your employment contract will usually transfer automatically to the successful contractor.

If you find there is no job for you, you can consider making a claim for unfair dismissal against both employers in an Employment Tribunal. You may also have a claim for failure to consult before a TUPE transfer.
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It seems unclear so I'd definitely have a quick word with a solicitor.
 
It doesnt make any sense as to why they are even requesting it, what she's doing is no different from cancelling a contract from say the franking machine which doesnt work too well any more and replacing it with one that does. Its a service she was hiring, not a person or persons.
 
Telescopi said:
My brothers company lost the contract to distribute the music and films for asda, he had the right to go work the company who won the contract, he was protected under TUPE and was offered a generous redundancy package to avoid threats of constructive dismissal (the new contractors warehouse was 300 miles away).

I think it applies, the direct gov site clearly says it does.
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In which case, please tell me, why would the new company even want to take on the staff from the old cleaning company. I'm sure they are likely to have their own, perfectly able cleaning staff. There is no reasonable grounds for TUPE here. She is not satisfied with the work they have carried out and wants to employ new cleaners from a different company.

The process really, to even avoid this, is to cancel the existing contract telling them that cleaning will be going inhouse.
Wait a week
Employ new cleaning contractors.
 
Moses said:
... the management structure/training/quality control which leads to them being good employees or bad ones.
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I think it is ridiculous as I don't think the company employing the services of the cleaning company should have to give any concern over the cleaning company employees. The main thing is that the company no longer needs the cleaning company's services and should be entitled to cancel the contract without (too m)any issues.
 
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