[Ian Harrison]

I understand the reasoning behind TUPE legislation i.e. to protect/preserve the employees current T & C’s. However a couple of quick questions – have trawled various search facilities and been unable to find answers.

Scenario One:

I win office cleaning contract and current provider, a local competitor, has 5 staff on site. Being a sizeable outfit said staff could be deployed to an alternative local site by their existing employer. They are happy for this to happen. My question is – are they forced via TUPE to remain at their original site even though they have been offered a viable local alternative they would be happy with? (In other words TUPE is normally only used by an existing employer as a way of “dumping” sub standard cleaners when loosing a contract, if they were any good they would be deployed elsewhere)

Scenario Two:

Same situation as above, but this time I am on the receiving end and have lost a contract to a competitor, say on a price basis. My staff want to stay with me and I can redeploy them locally. Does TUPE force them into being transferred to new contractor, even though they do not want to and I would like to keep them?

Scenario Three:

As above again, but I cannot afford to take on more staff as I have already resourced for the new contract prior to winning it. To me this is the biggest problem with TUPE as I understand it. I know there are various subtle ways to remove said staff over time after TUPE but in the short term it would have a detrimental effect on my cashflow.

Please forgive me if the answers are obvious! Any light shed on the above would be most appreciated!

Many thanks

Ian

[Kevin White]

Question 1. The employee is not forced to do anything.
Question 2. as above, the regulations are there to protect the employee, if the employee does not want to transfer, notice is worked.
Question 3. If you have negotiated a deal with your customer that would not accomodate the number of staff currently there then notice in line with the operatives contract should be served, ie. redundancy. This could be done during the handover period limiting the time they are paid by you.

regards
kevin

[Ian Harrison]

Thanks Kevin, much appreciated

[Dust Knights]

Questions 1 and 2 the answers are that the employee has the choice and not the client or the contractor. Pretty much as Kevin has outlined.

Question 3, sadly Kevin is incorrect. You cannot serve notice on an employee until they are your employees. During the handover period (ie the notice period for the outgoing contractor) the staff are the employees of the incumbent rather than incoming contractor.

Furthermore, the rights are with the transferring staff. If you have found alternative staff to resource the site with then you will have to employ them elsewhere. How can someone who has never worked on a site have equal or greater rights than someone who has?

You must offer the opportunity to transfer to the existing cleaning staff. It is then their choice.

I cannot understand why you would resource a site with new cleaners when you haven't seen that quality of the existing staff at first hand.

Considering how important TUPE is in our industry - and the consequences of getting it wrong, I am staggered by the number of contractors who really do not know even that basics of this legislation.

The last comment is a general one and not necessarily aimed at Ian or Kevin.

Chris

[Ian Harrison]

Thanks Chris

The question of resourcing staff before starting a won contract was hypothetical. I was just seeking clarification before getting into that situation.

Your contribution is gratefully received, thanks again.

As a qualified trainer, albeit not in the cleaning industry, perhaps there is some mileage in some sort of distance learning package to unravel the clearly critical and possibly costly implications of the practical application of TUPE!

Thanks for replies anyway guys

Ian

[Cleaning Resource]

You can only make a person redundant if their job no longer exists and will not exist again for a period of at least 6 months,