TUPE Question.
- Thread starter Castiel
- Start date
Very simplistically put.
Company A - Customer
Company B - Outsourced cleaning company
Company A decide to change cleaning company for whatever reason (contract has expired, SLA not being met and penalties come into effect, whatever).
Company C win the contract. TUPE applies to Company C transferring from Company B.
Nothing whatsoever to do with Company A - (after due diligence/tender has been won there will be some transfer of knowledge between current incumbent and Company C).
Company A - Customer
Company B - Outsourced cleaning company
Company A decide to change cleaning company for whatever reason (contract has expired, SLA not being met and penalties come into effect, whatever).
Company C win the contract. TUPE applies to Company C transferring from Company B.
Nothing whatsoever to do with Company A - (after due diligence/tender has been won there will be some transfer of knowledge between current incumbent and Company C).
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You can't. You can't even employ your own cleaners or undertake the work with existing staff without TUPEing across the current staff. Basically our legal director said that my wifes company would have to leave the offices uncleaned for a period of 6 months to avoid falling foul of TUPE.
It's a complete crock, I understand why the legislation exists but it is far too open to abuse.
The only viable options are for the new contractor to either replace the two members of staff and offer them work elsewhere or give them 90 days notice of a change of terms&conditions and then move them or sack them pursuant to any disciplinary procedures they have in place if they do not fulfil their duties as per their contractual obligations.
None of which my wife's company has much control over other than requesting a change of personnel due to their poor performance, which will take time.
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Potential legal quagmire.
In this instance since headcount is just 2, you could terminate the contract (within the agreed statement of works) stating service is no longer required/redundant. Company B would then be responsible for either placing their employees in another placement or invoking redundancy.
Company A could then advertise for "2 dust analysts at a later date".
Alternatively, in-source and then TUPE would apply between Company A and B.
In this instance since headcount is just 2, you could terminate the contract (within the agreed statement of works) stating service is no longer required/redundant. Company B would then be responsible for either placing their employees in another placement or invoking redundancy.
Company A could then advertise for "2 dust analysts at a later date".
Alternatively, in-source and then TUPE would apply between Company A and B.
Can I remind people that TUPE only applies at the point of transfer. Twenty-four hours later the new company can do pretty much what it wants with the staff that TUPE'ed across within normal legislation, as TUPE no longer applies.
M
M
Cheers Castiel. 6 months is rather longer than I was hoping for.
I imagine offering the contract to any company that refuses to hire the current two falls foul of much the same legislation.
Perhaps informing the current company that their employees are useless, and if not replaced they'll lose the contract, would work.
I imagine offering the contract to any company that refuses to hire the current two falls foul of much the same legislation.
Perhaps informing the current company that their employees are useless, and if not replaced they'll lose the contract, would work.
That's the plan, firstly to insist the people are replaced by the outgoing contractor as they are in breach of their contractual obligations or let the incoming contractor deal with it.
We need to check the legals, but afaik we do not have to accept any individual on our (read my wife's firm) premises so the contractor would be obliged to supply suitable replacements to complete their contractual obligation.
Where there is a will there is a loophole...
It just doesnt compute. In theory then, I can sack IT contractor A who works for ABC company because he's utter cack at his job. ABC company can then contact me asking for details of the new company XYZ because they want to TUPE contractor A across to XYZ company, thereby landing me with the same incompetent contractor, contractor A.
If TUPE applies here, something is horribly wrong!
If TUPE applies here, something is horribly wrong!
Soldato
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In fairness I don't think Waitrose would hire Poundland staff.
The weak point here is the way the original contract was done.
I work for a company that supplies a large Uk bank, there is a full TUPE schedule in the contract.
If for reason's of performance we lose the contract and are kicked out we wouldn't TUPE across however if they just wanted to kick us out and get someone cheaper in they would have to. But it is very complicated and the sort of thing ours and theirs solicitors have been in discussion over for quite a while to iron it out and make sure both parties are happy with.
You really have to be careful with employment law these days and never make assumptions.
I work for a company that supplies a large Uk bank, there is a full TUPE schedule in the contract.
If for reason's of performance we lose the contract and are kicked out we wouldn't TUPE across however if they just wanted to kick us out and get someone cheaper in they would have to. But it is very complicated and the sort of thing ours and theirs solicitors have been in discussion over for quite a while to iron it out and make sure both parties are happy with.
You really have to be careful with employment law these days and never make assumptions.
I've delt with TUPE during a company take over but not seen it in this setting, rather tenuous common sense straining use of law, not least because its not the cleaners only job!
Anyway, I think if it were me, I would firstly record the short comings of the current people doing the job over a couple of weeks, things not done, time spent chatting, the actual things they are not doing. Then bring in the company responsible and tell them to sort it out or you will bring in a new contractor to be responsible ( you could even get a few quotes before you bring in the company)
If things don't get better then you change to company B but be mindful when you choose company B that you are really asking them to get the staff (current or new) to do the job properly and make sure their staff work to your requirements, be this by better management or use of disciplinary procedure, no need to duck around the law.
Anyway, I think if it were me, I would firstly record the short comings of the current people doing the job over a couple of weeks, things not done, time spent chatting, the actual things they are not doing. Then bring in the company responsible and tell them to sort it out or you will bring in a new contractor to be responsible ( you could even get a few quotes before you bring in the company)
If things don't get better then you change to company B but be mindful when you choose company B that you are really asking them to get the staff (current or new) to do the job properly and make sure their staff work to your requirements, be this by better management or use of disciplinary procedure, no need to duck around the law.
The issue with that approach is that you cannot remove someone's statutory rights (such as TUPE) by contractual agreements, even if all parties agree at the time.
Even with such stipulations in the contract, the employees rights to TUPE are unaffected, regardless of what their contract states to the contrary.