TUPE Question.

PMKeates said:
I'm with Telescopi on this. It seems a little dodgy and the Direct.gov website does say:

It seems unclear so I'd definitely have a quick word with a solicitor.
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Ok slighly different scenario, you hire Amtrak to make regular delivery runs for your company, they turn out to be substandard, so you hire parcel force instead. You then have to TUPE Amtrak employees over to parcel force?
 
mattyfez said:
Ok slighly different scenario, you hire Amtrak to make regular delivery runs for your company, they turn out to be substandard, so you hire parcel force instead. You then have to TUPE Amtrak employees over to parcel force?
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No there's a specific exception for that:
Direct.gov said:
You are only protected under a service provision change if you can be clearly identified as completing the service that is being transferred.

For example, if you work for a courier service, but the collections and deliveries for a business could be picked up or delivered by a number of different couriers on an ad hoc basis, you would not be part of an identifiable team of employees.
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It all seems very odd, I agree, but after thinking some I can also see the reasoning behind it and why it may exist, so I would be very careful about doing anything potentially dodgy when the consequences if it is dodgy is an unfair dismissal claim.
 
PMKeates said:
No there's a specific exception for that:
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See, now when I used to work at FedEx it would be normal for a specific courier to routinely visit the same pickup locations unless on holiday. Therefore if the service was transferred to Parcelforce would that mean you'd be employed by ParcelForce for that customer? Obviously not, but is that because you service multiple customers on a particular route?

TUPE seems ****** stupid, I'm starting to understand why my gf has several examples of her being involved with this on her CV.
 
TUPE will most likely apply here. This may well be what is known as "second-generation outsourcing" and therefore a service provision change (along with insourcing and outsourcing).

I would suggest that your wife discuss the situation with a TUPE-specialised solicitor.
 
The issue is that the cleaning company or the staff provided do not work exclusively for my wife, so I cant see how TUPE applies as in my industry only contracts where the staff are specifically employed to fulfil that contract are covered by TUPE.

I've advised her to request the removal and replacement of the current members of staff supplied as they are substandard and are not fulfilling the contractual obligations.
 
Moses said:
I don't think it's ludicrous. Assuming there are legitimate failings, isn't it the fault of the company's quality control procedures? You get good shops and bad shops - I'd wager they get the same level of ~recruit~, but it's the management structure/training/quality control which leads to them being good employees or bad ones.
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Its ludicrous because they are not direct employee's, it should be no different than any other service that a company outsources.
 
PMKeates said:
No there's a specific exception for that:It all seems very odd, I agree, but after thinking some I can also see the reasoning behind it and why it may exist, so I would be very careful about doing anything potentially dodgy when the consequences if it is dodgy is an unfair dismissal claim.
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weird.. ok but the wife does not employ cleaners, and so isnt going to dismiss anyone. There is no employment issue, this I would argue is a contractual issue - as I understand she hired a cleaning company, which are not doing thier job to a satisfactory standard, ie the terms of the contract are not being met.

Surely that is grounds to terminate (or not renew) the contract and give the contract to another cleaning company? how effective the cleaners are is surely a matter between them as individuals, and the management of the cleaning company?
 
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"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."

This is not the case in the OP's scenario. The individuals are not loosing thier jobs, nor is thier company changing ownership, all that has happened is their employer (the cleaning company) has lost a contract. Thats how I read it.

If tesco bought ASDA, then TUPE would apply, as the ASDA staff automaticaly then become tesco employees.
 
From my missus:

Did you have to tender to win the contract for cleaning provisions? If so it is likely that TUPE will apply.
However if it’s a contract agreement, I’d check the terms in cancelling this or opt for new staff! In this case I cant see TUPE applying coz you can cancel the contract by giving them the necessary notice
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Castiel said:
There was no tendering process, they simply employed the cleaning company to clean the offices three times a week.
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Sounds like the second option then. Of course that was from a Chinese-whisper style convo with my gf so can't guarantee the accuracy!
 
Moses said:
Why's it most likely the fault of the staff? I said about a badly run shop compared to a well run shop earlier, where the staff start off at the same level and it's the training and oversight which make the difference. You could get Poundland staff and whack them in a Waitrose training scheme and I'm sure they'd turn out alright.
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It's irrelevant in this case as far as I can see, the OP's wife called a company in to provide a service. She didn't employ some cleaners as employees of her own company and then decide to get rid of them.

The company she contracted to provide the service is not providing the agreed service, and so she has every right to look elsewhere.

Everything will hinge on the wording of the official agreement between the wifes company and the cleaning company, but assuming (as is implied by the OP) it's a company that has failed to provide a service as agreed, then the contract is subject to termination. Its a contractual issue, not an employment issue. No one has lost their job, it's a simple matter of one company not doing business with another company any more.
 
I have been in this situation myself before. Cancelled cleaning contract due to poor performance. Went through the notice period and happily expected a nice new cleaner to arrive at start of new contract, only to be greeted by the same usless cleaner who had been transferred across. Complete shock by all at my offices.

I would call cleaning company in for a word. Tell them they are negligent and give them 30 days to improve the service. Tell them you expect them to perform to the standard of the contract and that you will cancel and do it yourself if they do not perform.

I think its practice in the industry to do this transfer as it stops them having to make people redundant and another look to recruit so they do these "free transfers"

My experience of cleaners is they all take the ****, do the bare minimum, and spend most of their time having a chat etc at the coffee machine.

Maybe your wifes company should arrange for someone to work late each night and monitor the cleaners, if you tell the cleaning co this is what your going to do to prove breach of contract then they will probably take you much more seriously. Contract cleaning is a complete racket imo.
 
After getting my legal dept to have a look at it (when I finally arrived at work) it seems that the cleaners are protected by TUPE, so as my wife had already cancelled the contract and instructed new contractors she will have to deal with the same cleaners at least for a time until the new contractors (who apparently do not want these two members of staff as they are known) can either get them to perform to a satisfactory standard or replace them.

Thanks to everyone for your input and advise.
 
That's one hell of a loop hole, so you are saying that if you bring a cleaning company in, and get rid becase they can't/wont do the job, you have to re-contract them with the next lot?
Did your wife hire a cleaning service, or did she unwittingly take on a bunch of freelance cleaners?

noted for future!
 
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