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Brian Gegg - Kennedys
Online advisor - 5 posts
In answering your enquiry we have assumed that the registered manager is employed by the charitable organisation and is based at the care home.
If the care home is being sold as a going concern, there is likely to be a transfer of an identifiable economic entity that will retain its identity following the transfer. Therefore, it is likely that employees of the care home will automatically transfer, in accordance with TUPE, to the purchaser with their current terms and conditions preserved. This should include the registered manager, provided that he or she is employed in the entity that is transferring. Under TUPE all rights and liabilities in connection with transferring employees' contracts of employment will transfer to the purchaser.
As the purchaser says it has a registered manager, it may seek to dismiss the current registered manager at the home. Any dismissal of a transferring employee for a reason relating to the transfer may be found to be automatically unfair. Such a transfer related dismissal could take place before or after the transfer. Under TUPE, a purchaser is normally liable in respect of any such unfair dismissal even if it took place prior to the transfer. It might be possible to dismiss fairly after the transfer for an economic, technical or organisational reason, but an in-depth analysis of the situation at the time would be needed to properly assess that issue.
Matthew Leake
Kennedys
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Brian Gegg - Kennedys
Online advisor - 5 posts
John
Sorry for the delay in replying. There was a confusion as to whether I should reply to you or not.
In basic terms you have a choice. There is no reason not to use self employed home labour. The issue will be whether they are truly self employed, which is always a difficult question, particularly when a significant question will be te amount of control you exert over a worker. You could easily proceed on the assumption that they are self employed only to find later on that they have in law been your employees all along, especially as such staff do not sound like they would be self employed to me. However in practical terms if you set up the relationship on invoice and make it clear in your agreements that the staff are not employees you may get away with it on a short term basis.
The better option may be to take on short term hourly paid employees. As long as the contracts make it quite clear that they will be employed only for short periods to fit demand you should be able to avoid the argument that although they come and go they are your employees all the time accumulating continuous service with you. You would not want that sort of "umbrella" contract. It may be that an agency could help you in this regard.
I hope this helps for now, but actually you have asked quite a difficult question which would demand more detail as to the nature of your business etc to answer more fully.
Regards
Brian Gegg
0207 614 3736
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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
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Brian Gegg - Kennedys
Online advisor - 5 posts
Martin
I am not an immigration specialist but my understanding is that S8 Asulum and Immigration Act applies only to those persons who you are employing. The question in your case ( although never easy to answer ) is whether St Catherines is the true employer of the staff or if the agency is the employer. From what you have said it sounds like the agency is the employer. Even then it would be prudent to get written confirmation from the agency as to immigration status of workers provided or at least keep a proper attendance note of conversations.
Regards
Brian Gegg
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