[*paul_moss]

On transfer of Under takings of any business it means in simple terms that you take over that business/contract as it stands , that includes staff ( and thier service).
Always be carefull in this situation as you may end up in court.
Paul

[Debbie S]

But is it true that if you offer the cleaner a pay rise = new contract this then if they accept it voids TUPE?
Debbie

[martin19842]

Len,

i agree, however these cleaners seem to be getting wise to this, and some cleaning companies will attempt to pay the cleaner off on a full and final settlement, similar to redundancy. 

the operatives then win inthis case, as they get paid off by the incoming cleaning company and then start another site with their original employer.

the other thing that has been done in the past is that the cleaning times have been changed from morning to evening, and this has constituted a large enough contract change to make the original position redundant. 

but as you say this is a minefield, ironically it was brought in to protect large teams of cleaners ie schools, airports etc.  and now we are all in the frying pan.

regards

martin

[Fox]

Don't be fooled into thinking that by changing the pay rate for someone under TUPE it will void their contract.  If you bring in another contract (even if it has got better pay) the employee has to agree to all of the terms and conditions before they can be transfered to it.  You can enforce a change of contract onto someone but to do this you would have to dismiss them first then re-employ - giving the employee a chance to claim unfair dismissal! 

TUPE is designed to keep employees safe but can cause terrible problems for the employer.  At present I am finding out just how many!

Fox

[Len Gribble]

Martin

Incoming cleaning company pays them off? They must have money to burn; there are other legitimate ways of skinning a cat.

By the way forgot to add re citizen advice I won!

As you say it was brought in for the large teams, luck for me I was not in that league, saying that, it’s surprising the thought of a new broom run and scatter.

Len

[a55essor]

So does that mean that a company can never get rid of rubbish cleaners because
 TUPE protects them.

[Len Gribble]

KL

How long have you been in the game?

Take this as a scenario paid by the hour not by the clean, employee contracted to work for 3 hours 5 days a week left ½ hour early each day, if you follow the correct procedure I would be surprised if you would have a problem, the list is endless it depends on circumstances.

I totally believe in employees rights but it’s a two way street.

Also noted you mentioned poor service and noted there cleaning was hap hazard, let me give another scenario poor service from cleaning contractor but great cleaner no equipment to carry out tasks.

Len

[a55essor]

 Hi Len,Was a area supervisor for ten years,I've been self employed for three years never had to deal with TUPE, cleaners have gone with thier company or the clients  had thier own arrangments. I think i've been lucky up untill now.
KEV
PS your www doesn't work

[Fox]

Hi

Len is correct many ways to skin a cat!  If you decide to use the disciplinary route because of poor performance, time keeping etc make sure you follow the procedure on the contract they have transferred with, don't automatically asume they are exactly the same as yours.

Also when quoting for work ensure you put a provision in the quotation that states it does not provide for the provision of TUPE.

Fox

[Len Gribble]

Kev

it's down a the moment

Len

[Musicman]

I've been watching this thread for a while without passing comment as I have written extensively on TUPE on this forum in the past but now feel that I'd like to add my two penny's worth.

You can enforce a change of contract onto someone but to do this you would have to dismiss them first then re-employ - giving the employee a chance to claim unfair dismissal!

What you on with Fox?

Once they are your staff you can vary pretty much any term and condition within a transferring cleaners contract (with the exception of sick pay/benefits I am advised) as long as you give sufficient notice of the change and follow the correct procedures. This means that you don't need to dismiss them. My advice however would be not to tie the changes in with the transfer, let the contratct have chance to settle down first.

The notice period required is in line with redundancy - i.e. 1 week for every full year's service up to 13 weeks.

ETO (economic, technical or organisational) changes enable you to effect any alterations to the working structure - shift times and duration, staff numbers, working practises etc.

For example a few months ago we secured a small contract where there were 3 cleaners each working 2 hours a night, 3 days a week. The client wanted to change the pattern to a 5 night clean but with only 2 staff @ 2 hours per shift.

Through a series of meetings we have been able to make the necessary changes - and without losing any of the cleaners involved.

With regards to inheriting poor cleaners our view is that we will re-train, give documented work schedules, usually a pay rise, the right equipment & chemicals for the job and a high level of management support. If this doesn't work we go down the disciplinary route - although the crap ones usually disappear within a few days - must be a sixth sense.

With the new disciplinary/dismisssal procedures any attempt to pay staff off would be considered as a breach of procedures and a second pay out would be guaranteed.

Kev - just to confirm your thoughts - yes you have been lucky, VERY lucky!!

Hope this helps.

Musicman

[Fox]

Hi Musicman

Haven't seen you around for a while hope things are going well.  Yep still taking the pills! There the ones you recommended remember? lol

When I was talking about changing terms and conditions and dismissal I was talking mainly remuneration as that is the area that an employee would kick up a fuss about if it meant loss/change of hours/pay/holidays/sick pay etc.  However I think you will find that you do have to negotiate with the employee over any change in the contract.  It is when negotiation does not solve the issue and as an employer you still want to enforce the changes that dismissal/re-employment could happen.  I don't think an employee would argue the toss over your change in disciplinary, grievience or security though!  Even if they did, as long as you follow the correct legal procedure there is no case.

I am at present going through a complicated situation with TUPE I have currently got employment lawyers dealing with it for me so at this moment in time as you can imagine I know the ins and outs!  I to used to think that giving sufficient notice for changes in contract was enough, but believe me it is not!  My advice - do not make variations in any form without written agreement from the employee.  If negotiation was needed to reach the final decision of the change ensure it is listed and agreement signed also.

Fox

[Musicman]

Hi again Fox, have been watching from the sidelines as the fresh batch of 'newbies' have been finding their feet. Things still good up here thanks - keep managing to avoid the bullets!!!!

The negotiations that you refer to are part of the series of meetings - that should be minuted, typed up and signed by all.

To put all of the processes on here would be exhaustive but one of the things you must do is to give the employees the opportunity to come up with their own ideas about how the end result can be achieved.

The fortunate thing for us in my example was that one of the cleaners was thinking along the same lines as ourselves - so it was 'their idea' that was implemented.

The following advice was given by a Union rep so may help you. If a client withdraws permission for a cleaner to be on their site you have to remove them. You must then try to find them an alternative position - similar area, hours etc. If no alternative can be found then you have to let them go, you do not have to keep them on your payroll until a suitable position can be found.

Could anyone prove that you instigated that request?

Good luck, if you run out of pills I have friends of friends...

[Malcal]

Hi All
There are several commercial contract cleaning company's (They usually have company name like cleaning Management or cleaning Agency.) at work in the UK that dont employ cleaners. Only on a self employed basis. Their advert in the jobs section goes something like " cleaners wanted in ****** area on a self employed basis. This is an oppurtunity to run your own contracts!" . This is another advantage to the cowboys, i.e no cleaners - no TUPE,  NWM,  P45, P46, P60, PAYE, NI, employee insurance, no grief. They have been taken to tribunal in Northampton and got away with it.

Cheers

[martin19842]

regarding these agency companies.

who would take who to court, are you infering that the sub contractor has taken the cleaning agency to court because they 'the cleaning agancy' has lost the contract, and the subby then doesnt have a job to clean?

in my experience, agency companies, try to wriggle out of tupe on a winning contract basis, ie dont want to inherit the cleaners, cause as you rightly say they dont employ.

secondly when they loose contracts, they generally dont apply tupe to the incoming cleaning company.

therefore the subby then has to pursue any claim, and if they continued to clean and claim agsainst the new incoming company, then they would have a good argument.

regards

martin

[Happyeater]

Without getting in to too much detail, I've just been fined at a tribunal for a breach of the TUPE law.

I was successful in being awarded a contract I had bid for and was told on the 6th of the month. I met two members of the cleaning staff on the 9th. During the meeting I informed both cleaners that they were entitled to their current jobs and their terms and conditions would remain unaltered should they wish to come to my business. I said that they would have to supply a copy of their current terms and conditions of employment so I could continue with it.

During the conversation, I explained that by working together (I would have to recruit another 2 cleaners as it was a four cleaner job) we would make a difference. I explained that as the two new cleaners would be under our normal terms and conditions but this wouldn't cause any difficulties etc.

I received a telephone call on the 14th from one of them to say that they had considered what I'd told them but they would rather stay with their current employer as they'd been there years and had been offered alternative employment. I therefore recruited 4 new cleaners and started the new contract.

Two months later I get an IT1 from the tribulals people. I was getting sued for constructive dismissal. Why? cos they wanted to keep their jobs.

At the tribunal these two (one had come as a witness) told the tribunal that I had not offered the same terms and that I had insisted that they come under my normal terms etc. They lied. The one who called me said that she had never called me. Another lie. I had asked for her phone records, the tribunal said that this was not something she had to do. How else could I prove or disprove it? She did say her phone was a pay as you go and no itemised bill was provided. I was asked why I had not confirmed in writing that she was not going to join us, if I had recieved a call!! What a load of cack. They argued that I had no intention of employing them as I had not requested TUPE info from their old employer. Why should I ask for it if they weren't coming across to us?

With a witness who lied and no phone record provided, the tribunal believed them. I was fined £1500 and had to pay to someone who hadn't even filled in an application form. Be warned, use a recorder in all TUPE and disciplinary meeting with staff. The tribunals are not pro - employer.

[Len Gribble]

Glad I don’t have to deal with this type of agro any more; regarding recording I think you will find that you have to inform the person/s that you taping the conversation and if they don’t want it taped, not a lot you can do about it.

Len

[Happyeater]

Hi Len, I do inform them but just dont give them much of an opportunity to say 'no.'

The law is an ass, mate. We employers need to protect ourselves against the scum that have now decided to 'sue' for a living.

[Len Gribble]

No argument from me re law, or what you are doing taping that is, I had a similar problem over HS cleaner got a shock of a cable and wanted to sue, luck for me the customer also used the Jan cupboard for storage and noted all signs/info which were pined on the wall were missing, they were there the day before!

Though I’m not into the commercial side any more is the law changing that that the cleaners, will get bank hols off as a part of there hols entitlement and not pro-rata as before.

Len

[martin19842]

hi there,

i have always dealt with TUPE by means of having everything written and signed by both parties.

the other thing would be that i have never started a contract until all tupe is fully agreed.

regards

martin