[PaulineH]

Hi Guys, Right this is  abit of a long one,last month i took over a new quite big contract and TUPE appeared on my radar, i had never experienced it before but got legal advice etc. Spoke with the cleaner concerned she wasnt happy with the cleaning company and didn't want to transfer under Tupe, after legal advice i was told that if i waited at least 2 weeks after the contract ended i could then employ her under my contract, terms & conditions, pay etc. I waited 2and a half weeks before starting the employee, now bear in mind the contract was lost due to the very poor standard of cleaning. I thought the other company had treat her quite unfairly and just dumped her so felt a tad sorry for her so offered her the job, but explained all along that my standards are far higher than she's used to,she seemed ok with this.
The job changed from a am clean to pm,reason being you encounter less staff on premises and no smelly bins left over the weekend.
She was ok with the change, she started on the 19th july i showed her exactly what i needed form her,and explained the client had stressed he didn't want the standards to drop again,we worked really hard getting the building upto a very high standard,and had compliments regarding the improvements.
I left her on her own wednesday and thursday evening,as i thought she understood what was expected. I went last night to replenish supplies and to check round, wasnt happy with what i found especially in the toilets. So went to speak to her(thats when the bomb went off) i simply said that the toilets were a very important part of the clean and needed doing thoroughly each day. she stared shouting and screaming, i on the other kept my calm. she then said she was in 2 minds whether to take the job as the hrs were inconvinient for her,as she had to rearrange her day, look after grandkids and her hubby had decided he couldn't bring her to work after all, as i explained these weren't my problems and she never said there were any problems with the pm clean.
She said i was spying on her work and why did i need to check it, and she thinks i got the staff in the office to spy on her!! which i didn't!! I got the feeling she didn't like been pulled up about anything which i can understand she's 55 and cleaned for many years,she said "you can't tell me anything about cleaning" but i've been cleaning for 28yrs and i'm only 12yrs younger than her so hardly a newcomer myself!
Now i didn't sack her but after 30mins she downed tools and walked out, i am 100% sure i've done everything right i've not been in this situation before, is there anything i need to be worried about ie;could she do me for un-fair dismissal even though i haven't sacked her?
Sorry for the long post guys but any advice would be appreciated as always..Pauline   

[Scotbrite]

Hi Pauline,
There are to me a couple of points here.
1 She decided NOT to transfer under TUPE which is her right. Dont actually think it was necessary to wait the two weeks.
2 As such you took her on as a "new" employee, so she would be under the normal probationary rules, you did fill in a starter form and put her on a three months trial period - yes ??
3 Having been shown that her work was not up to standard ( disregarding the shouting spell, which could be a disiplinary issue anyway) she decided to leave her employment by walking off the job.

I would note all this down in my diary & follow this up with a letter explaining that  " you are sorry she decided to leave your employment but accept her resignation & if she wishes to discuss to get in touch". If she decided to contest this (which i would say she wont) then call her to a meeting (again keeping notes & give her a weeks notice,

Hope this helps,

Ron

[BDCS]

I'd ring her and ask for her resignation letter as the sooner your recieve it the sooner you'll be able to settle up with her

[Robert Parry]

Hi Pauline,

In any aspect of business it is vital that you follow all the rules and procedures as laid down by current legislation.

Ron raised a number of points, which require further clarification.

1. She decided NOT to transfer under TUPE which is her right. Dont actually think it was necessary to wait the two weeks.

    Under TUPE, you and the outgoing contractor have a number of legal obligations to fulfil, did both parties meet these obligations?

    The employee does indeed have the right to refuse the transfer under the TUPE legislation, however, the decision not to transfer should have been in writing.

2. As such you took her on as a "new" employee, so she would be under the normal probationary rules, you did fill in a starter form and put her on a three    months trial period - yes ??

    Did you advertise the vacancy or was this particular employee the only one in the frame so to speak?

    Did you issue and recieve back the following (signed and dated documents when required):

    Job Description
    Application Form
    Employee Handbook (detailing company policies and procedures etc)
    Employee Contract (including details of any trial period etc)
    Training Programme

3. Having been shown that her work was not up to standard ( disregarding the shouting spell, which could be a disiplinary issue anyway) she decided to leave her employment by walking off the job.

    Before taking any disciplinary action, and certainly before dismissal, you must ensure that all company guidelines, procedures and current legal requirements have been adhered too.

If in any doubt, proper legal advice must be sought, the current fines and tribunal awards are extremely punitive.


Regards,

Rob




























































































































































































































































   

[PaulineH]

Hi Guy's, Thanks for the replies, She hadn't signed her Employee contract & Handbooks etc, i was still waiting for her to sign them. I got nothing in writing from her previous Employer or her to state she didn't want to transfer under TUPE, but i know she had to put it in writing to her former Employer. The job wasn't advertised simply because 8 days prior to me taking over the contract i was contacted by the client saying the outgoing contactor was stating i needed to take over their employee under TUPE, i had no problem with this as i assumed the cleaner just needed a bit of guidance which i know she hadn't recieved before.
She did know she was under a probationary period of 3 months in which training would be given as and when i deemed necessary.
She only gave me her P45 on Friday which i'm assuming i still need to pass to my Payroll, then she'll get another one from me.

Many Thanks

Pauline

[Londoner]

TUPE doesn't apply when one contract ends and another company bids for a new contract. It only applies if the work or function is "transferred"  subtle difference but loaded with implications.

In reality the law is toothless because there is nobody to police it. The only time it comes to anything is if the staff involved are members of one of the big unions and they are willing to fund it privately.

Nobody else will get involved. 

[pristineclean]

With respect to the above post, I think it's important to clarify its content.

TUPE will not apply if the previous contract has been a performance contract; if I am contracted to carry out the building clean of a new school, my staff won't transfer to the company who are contracted to carry out the daily clean. TUPE is also unlikely (although it's not impossible) where the previous contracting company has gone into liquidation. In any other circumstances, including taking on a contract where there has been a break in the service provision, it's reasonable to assume that TUPE will apply and to follow the regulations accordingly.

Many of the leading cases in TUPE law relate to either catering or cleaning businesses and a high percentage of those are against the smaller companies.  Telephone calls to ACAS are free and offer immediate advice to would be litigants and CAB, local law clinics and the Free Representation Units offer additional assistance for people who have been wrongly dismissed. Employment Tribunals do not require claimants to be represented and there is no charge for submission of an IT1. The changes to the law in 2006 specifically include the provision of services as being covered under the TUPE regulations and it's important to always consider these and take advice when taking on any contract.

None of this is intended to contradict the above post which I interpreted as meaning that a new contract to provide work in a substantially different form from the previous providers does not attract TUPE liability. This is correct and falls under one of three headings under which an employee is not eligible for transfer, these being Economic, Technical and Organisational (ETO), the individual circumstances determining which is the more appropriate.

And none of this applies to the original question since the employee elected not to transfer and is therefore deemed to have resigned pre-transfer. In the unlikely event of any further action, it will be taken against the former employer since she had already refused the transfer. Her subsequent employment was on the basis of new terms and conditions and she does not therefore qualify for Employment Tribunal proceedings.

Where it all gets really complicated is where part of the duties of an employee transfer  but that's more of an essay than a post :-)

[darren clarke]

i wouldnt of took her on if they had lost the contract for her cleaning standard

[newbroom]

Hi you are probably best shot of this lady. If i was you to cover myself i would send her a heat of the moment resignation letter.

in the letter explain to her you appreciate she resigned in heat of moment invite to attend a meeting to discuss issues, set a timescale to her written response.

I very much doubt she will respond and you will have carried out your duties as an employer.

regards Mark.

[Ricky M]

http://www.acas.org.uk/index.aspx?articleid=1655