Comments by Martin Brewer

Martin Brewer - Mills & Reeve
Online advisor - 80 posts

Valerie, this makes a huge difference. Only 'assigned' staff transfer to the new provider and broadly this means staff who are dedicated to your work.

Martin Brewer - Mills & Reeve
Online advisor - 80 posts

TUPE applies. TUPE doesn't apply differently depending on the factual matrix, it always operates in the same way-automatic transfer of assigned employees, from transferor to transferee, on the transfer date, entire employment relationship transfers other than pension rights, collective agreement and union recognition transfers if relevant. The process is alo always the same.
In particular, to take your scenario, the application of TUPE, if this is a service provision change, is not dependent upon the new services being provided in the same or a similar way to how they are currently provided (including location, technology, structure etc). I should add for the sake of completeness that if the transfer is a classic 'transfer of an undertaking' then the undertaking must retain its identity after the transfer for TUPE to apply, so in such a situation the details of the services and how thay will be carried out etc. becomes more important.
The real question in your example is how you and the new provider handle the transfer in circumstances where there may be a transfer into a redundancy situation. Take good legal advice as this is a potential minefield.

Martin Brewer - Mills & Reeve
Online advisor - 80 posts

Valerie, I am sorry to be dogmatic about this but you have to put out of your head ideas of companies being taken over or the transfer of a 'business' as the only time TUPE applies. TUPE will now also apply to a service provision change. This is becasue TUPE 2006 has added a whole new definition of a transfer on top of the previous 'transfer of an undertaking' definition from TUPE 1981. This means if the company which provides a service to you ceases to provide that service, and is replaced, by you (taking the service i n house) or another contractor, then assuming the outgoing contractor had a group of staff dedicated to that service, those staff WILL transfer under TUPE. It is wholly irrelevent that there's no 'takeover', that there is no contract between outgoing and incoming contractor and indeed that they are in fact in competition. It is irrelevant that there is no transfer of 'a business' in the normally understood way.

Martin Brewer - Mills & Reeve
Online advisor - 80 posts

It's simply a function of the way TUPE is drafted and it has been the case for almost 20 years so it really shouldn't come as a surprise to anyone. TUPE is designed to protect employees if the business in which they work transfers. This is what happens when one contractor takes over from another. So the short answer is just about the only way to avoid a TUPE transfer is to not have cleaning done (this is because even if you decide to do it yourself the TUPE transfer will be to you).

Martin Brewer - Mills & Reeve
Online advisor - 80 posts

With respect to Kevin it's simply not right to say that TUPE won't apply to Valerie's circumstnaces. The question is not 'why are you changing contractor'. It doesn't matter if you are terminating the contract for breach, poor performance or you just fancy a change, the question is, if you replace contractor A with contractor B is this a transfer of an undertaking or a service provision change (within the meaning of TUPE). If it's either one or the other then TUPE will apply.
It is one of the abiding difficulties with TUPE that if you change contractors to get rid of a poor performing group of contractor staff, you end up with the same staff employed by the new contractor. The key is in ensuring that you have a robust contract setting out the performance level you require and then properly managing that contract.

Martin Brewer - Mills & Reeve
Online advisor - 80 posts

Just so everyone is entirely clear-for all employment rights an apprentice will be an employee. The Employment Rights Act 1996 specifically refers to a contract of employment as including a contract of apprenticeship "whether express or implied and (if it is express) whether oral or in writing".

Martin Brewer - Mills & Reeve
Online advisor - 80 posts

It's entirely a matter of contract. The right to take holiday in your case is subject to authorisation. Thus you can prevent the leave being taken. If any of this leave amounts to statutory annual leave under the WTR then 'compensation' will have to be paid. Your contract may also allow for untaken leave to be paid in lieu so you will need to check this.

Martin Brewer - Mills & Reeve
Online advisor - 80 posts

In the end if your insurer is happy then that's what matters. The key thing to remember is that it will often be the case that the employee becomes fit before the expiry of the sick note, after all how often can the disappearance of the sickness actually coincide with the expiry of the sick note? If that's the case then the employee should have no difficulty getting signed back to work but that's not always convenient particularly if it takes a week to get a docotr's appointment. In such cases, whilst it is of course good practice to get the employee signed as fit to work, if you can't then you may want to carry out a risk assessment just to satisfy yourself that the employee is fit and do get your insurer's express agreement in each case.

Martin Brewer - Mills & Reeve
Online advisor - 80 posts

Two things are being confused. The 3 months the ex-employee refers to is clearly the 'probation' period. Subtract the two months worked from the three months probation period and hey presto you get one month.

But from what you say the contract you entered into has a one week notice period. It is therefore the one week notice which applies. There simply is no 'one month' notice period.

Martin Brewer - Mills & Reeve
Online advisor - 80 posts

She is correct, and yes the content of these discussions would be admissible in court.

Martin Brewer - Mills & Reeve
Online advisor - 80 posts

Jeremy, if your 4 staff are an organised team and their principal purpose is to provide services to this client then, if the client takes the service (not the specific roles) in house then all 4 staff automatically transfer under TUPE as this would be a so-called service provision change transfer. Likewise if the contract was to go to another contractor, the staff in these circumstances wou;ld transfer to that new contractor.
It is also possible that the contract forms an 'economic entity' so that if only certain of the specific roles are taken in house that nevertheless forms a transfer of 'part of an undertaking' but more detailed information is needed to give a definitive view.

Martin Brewer - Mills & Reeve
Online advisor - 80 posts

catching up on this I can see lots of muddied water.
James, the courts have confirmed that you cannot imply a contract of employment unless you have the requisite 'necessity'. The courts have also confirmed that time is not an issue. Furthermore they have reaffirmed that unless the contractual arrangements in place are a sham, you don't look behind them.
So, the key issue for Anne is this: can her workers refuse work which is offered. If they can then they are not employees. Employees cannot refuse work. It does not matter if these workers have never refused. The test is not 'have they' but 'could they'.
Anne, being on the payroll is not conclusive of an employment relationship. Many non-emloyees who hire out their services on an individual basis are put on the payroll as HMRC require this-it's a tax collecting measure.
Furthermore, the fact that someone has mistakenly received sick pay does not make them an employee. It's just a mistake.
What this debate does highlght is the very real need to get good contracts in place, be they employment contracts, consultancy contracts, contracts for services etc. and to ensure staff are treated in accordance with what has been agreed.

Martin Brewer - Mills & Reeve
Online advisor - 80 posts

Legally speaking in order for someone to be an employee the minimum (but not only) requirement is mutuality of obligation (the employee is obliged to work, the employer is obliged to pay). The absence of this is fatal to an employment relationship. Your contract would seem to be sufficient to prevent these individuals being employees (assuming it's not a sham contract). I should add that it is irrelevant whether the individuals concerned have never or rarely refused work offered. If they can refuse then there is no mutuality of obligation.

Martin Brewer - Mills & Reeve
Online advisor - 80 posts

There's no inherent obligation to provide staff with car parking places. Obviously if anyone has a current contractual right to a car parking place then you will need to continue to provide that or if, for example, that's not possible because of the geography of the site, you could replace the car parking space with say a payment to the employees of the financial equivalent so that having to park in a car park doesn't financially disadvantage the staff

Martin Brewer - Mills & Reeve
Online advisor - 80 posts

Ben/Lisa, the concept of a probation period is entirely contractual. It's not a creature of statute. So if, for example, an employee has a 3 month probationary period, nothing is said about performance in the first 3 months and then after say 4 months the employee's performance is raised and perhaps even the employee is dismissed, the fact that this is after the probationary period is irrelevant since, unless there are special cirucmstances , the employee can't claim unfair dismissal.
You may ask what then is the point of a probation period. It seems to me to have two uses. First to simply remind the employer to review the employee's progress and second in many cases to give the employee who has 'passed' the probation some extra contractual rights such as a longer notice period.
So 'passing' the probation is wholly about your relationship with your employees not about compliance with any externally imposed legal requirement.

Martin Brewer - Mills & Reeve
Online advisor - 80 posts

In short the answer is yes. Clearly you are, as a matter of policy, discriminating against anyone over the age of 60 by refusing them access to benefits available to those under 60 which amounts to age discrimination under the 2006 Age Regulations. It is possible under the Age Regulations to justify discrimination if you can show that the discriminatory act is neverthe;less a proportionate means of achieving a legitimate business aim although it's difficult to see how you can do that in such a case. Your two stated positions-accommodating anyone who wants to work after 60 and stopping all benefits after 60-seem to be wholly contradictory.

Martin Brewer - Mills & Reeve
Online advisor - 80 posts

there are no special provisions in such a case. Your colleague has the same protection against unfair dismissal that anyone has. So if he is dismissed the questions will be first was there was a potentially fair reason for the dismissal, second was a fair process followed and finally was the dismissal reasonable in all the circumstances.

Martin Brewer - Mills & Reeve
Online advisor - 80 posts

Linda, surely the answer is in the question. You say that you will not pay the employee for bank holidays if the employee is not 'in employment' when these days 'are paid'. You also say you paid them on 20 December and the employee handed in his notice on 21 December. It follows from this timetable that this employee was, in fact, in employment on the day when the bank holidays were due to be paid (and were in fact paid) and he is therefore entitled to the pay simply on the basis of your own policy. I don't see that case law or anything else matters.

Martin Brewer - Mills & Reeve
Online advisor - 80 posts

Stuart- the Working Time Regulations (WTR) require that any worker who is scheduled to work for more than 6 consecutive hours is entitled to an uninterrupted break of 20 minutes away from their workstation. Case law suggests that this break must not just be uninterrupted but uninterruptable to count as a rest break within the meaning of the WTR. So the first point is that neither tea break qualifies as a break from work under the WTR. The hour for lunch may do provided you have no right to require staff to work during more than 40 minutes of it.

There is a definition of working time is contained in the WTR. Working time is any period when a worker is:

working
at his employer's disposal, and
carrying out his activity or duties

Unless the time during the tea breaks fulfills this definition it isn't working time for WTR purposes. However, Stuart, I think that you are missing the point when asking whether the time is 'working time'. The definition I have quoted is, as I say, for WTR purposes only. It tells you nothing about what you have agreed with your staff. Incidentally whether or not you pay them is irrelevant. Many prople work unpaid overtime, the fact that it is unpaid doesn't mean staff are not 'working'. It means they are doing unpaid work.

Richard is correct, you must look at what in fact you have agreed in your contract (either expressly or impliedly) and take advice before making any changes that could adversely impact pay or hours.