TUPE

Anonymous

As I understand, if the job remains the same, with the same customer, same equipment, same work, etc, then the job is hers. Perhaps I have misread it but I always thought that was the case

Anonymous

The job would be the same, but the equipment would not. The cleaning company removed their equipment and therefore either we would provide the equipment or perhaps the cleaner may provide her own equipment.

Nick Soret
Member - 5 posts

She does fall within TUPE - yes the job remains the same - with the same Terms and Conditions. If the former cleaning company provided the equipment, then according to her terms and conditions you would have to do the same.

Anonymous

Is there a period of time after which she does not fall within TUPE?

Anonymous

No there is not.

Anonymous

So if we do not recruit her we have no responsibility to her under TUPE, right?

Anonymous

Please bear in mind that..

1) we never employed or otherwise paid the cleaner

2) we used a cleaning company, who in turn contracted with the cleaner

3) presently we have brought the cleaning in-house, and have NOT used the cleaner directly

Given all the above..

4) does the responsibility for redundancy lie with the company who receuited the cleaner and cannot now provide alternative work, or us?

Thank you for your prompt assistance

Anonymous

Can anyone advise on the last 2 entries above?

Many thanks.

Anonymous

1. If you do not recruit her you have no responsibilies under TUPE as the cleaning co. is not transferring, or transferring any part of the work.

2. If you are now using in-house cleaning and have not using this cleaner directly - what has happened to her? Be very careful here - are you sure that she was aware that the contract with the co. that she was contracted to had terminated?

3. Responsibility for redundancy lies with the contracting company - again be careful to ascertain that although they could not provide her with work - that there was no understanding that you would.

Debbie Rogers
Member - 2 posts

Hi, I think that the lady should have transferred to you under TUPE and that the contractor should have informed you that they thought this was a TUPE transfer. They and you should have consulted with the lady about this and then she should have transferred to you with the same contractual terms and conditions as she had with her previous company including her length of service.

Any dismissal related to a TUPE transfer is automatically unfair unless the employer can prove that there is a genuine ETO (Economic, Technical or Organisational) reason for the redundancy.

I'm not sure here if you are saying you want the lady and want to recruit her directly to avoid TUPE or whether you don't believe that TUPE applies and that you want to recruit her because her previous employer have not said that she is covered by TUPE.

Anonymous

Many thanks for your replies.

We have not recruited her.

The cleaner worked for a cleaning company who provided us with cleaning services for the past 8 years. During that time the same cleaner was usually sent to clean our premises, but always under the control of the cleaning company who paid her.

When we ended our contract with the cleaning company they informed us that she would transfer to us under TUPE.

Surely this is nonsense if we do not recruit her???

Lesley McDonald
Member - 1 post

I am not sure it really is a matter of recruiting her as such. She will automatically transfer over to you, unless of course she was offered (and accepted) alternative employment with her previous employer. Contracted cleaners seem to get the raw end of the deal in these situations, and I have dealt with a number of tribunals brought by such employees. The tribunal stance is that they transfer, and there is not an awful lot you can do about it I'm afraid.

Brian Gegg - Kennedys
Online advisor - 5 posts

Dear Sam

In short, a change of cleaning contractor can result in a TUPE transfer of the staff concerned (even if that involves one person) from the outgoing contractor to the new service provider ( whether this is a new contractor or if a company in your position takes cleaning back in house.) Whether TUPE applied at the time your cleaning contract was terminated is a matter of law, and will depend on a number of factors including the practical position of the contractor at the time. If it did potentially apply but you did not take on staff, that in itself might mean that TUPE did not apply in law. However your reasons for not taking on staff would be relevant as well. I also do not know what happened to the lady in question - was she dismissed by the cleaning company or redeployed within their organisation? She may well have rights against you or a new contractor even though she did not actually transfer. The point is that the TUPE position will have been dictated at the time of contract termination and at the time someone else takes over the cleaning services. It will not necessarily be dictated or triggered just because you take the cleaner on directly now, and adverts will make no difference either way. That said taking her on now ( I assume there has been a gap since the contract ended) could fuel an argument that a TUPE transfer took place beforehand, but if you want her you will need to live with that risk.

Your best stance is that TUPE did not apply at the termination of the contract but that you will now take her on on a new contract as a completely separate issue. If TUPE did happen to apply, her continuity of service would run from when she first started cleaning for you under the cleaning contract, and she would have been deemed an employee of yours from that time, and you would be expected to employ her on the same terms and conditions as she enjoyed with the cleaning contractor, and not to change those terms for any reason connected to the TUPE transfer.

This is not an easy issue, but as a start it sounds like you should take the stance that she will be employed on a new Pegasus contract starting on her first day on new work, and see if any issues are raised. In practical terms if there are no other potentially transferring staff from the contractor other than her, there shouldnt be much of a risk, unless you know that she was employed by the contractor on some form of inflated terms of employment.

Regards

Brian Gegg

Partner - Employment Group

Kennedys

0207 614 3736