[suffolkclean]

Hi Nick - This is what I was worried about she could be on the sick for a while & we end of paying it, what a complete minefield 
I'd really apreciate you emailing me a list of questions - it is worrying me a bit.

[starplus]

Hi,

I have a similar problem .
We have done a quotation last week, 10 cleaners, 2hours a day 5 days a week.
I told the site office manager that by TUPE rules we need to take over the existing cleaners
and she told me that she doesnt want that cleaners there because she was not happy with them.
Does TUPE apply on this case or not?
What should we do in this case?

Many Thanks
Sergio

[Nick Head]

Sergio

TUPE will probably apply - it is not up to the client - as long as the contract is fundementally the same (which it is) TUPE will apply.

Basically, the law is clear, there are remedies for a failing cleaning service for the client to pursue as there are for contractors to deal with failing cleaners. Just "Getting rid of the staff" is not one.

Nick

[Gilbert Sprous]

Another thing to consider with TUPE is how long the cleaner has been in place and what percentage of the total work that cleaner recieves from that site.  TUPE follows the lines of the employment acts legislation when it applies as far as how long the cleaner has been cleaning on that site.  If it is less than a year then it is easier to change the Terms and conditions of their contract or in some cases terminate their employment, but be careful of the wrongful dismissal legislatio.  If it is between a year and two years you get a little grey area, and more than two years you have to take them on under their current terms and conditions.  Some things are not covered under contracts so that is where you bring in your policies.  Such as sickness notification times are usually not in the contract but part of an employee handbook. Some companies are to scared of tribunals to excercise their rights and fold to all the demands of the employee when it comes to TUPE.  I recently took over a contract from the County Counsil, 6 cleaners 4 of which were in a Union.  The union brought up TUPE and Tribunal every time I tried to do anything that would benefit the client.  Some things I did not get away with and had to keep in place but others I did get changed and there was very little anyone could do about it.  If you are sure you are right, stand your ground and make things work the way you want.  In the end you are the one trying to make a margin. 


Also if a transferred employee is working at another site for the current contractor and the site you are taking over comprises less than 50% (alot of people will say 60 - 70% to be safe) of ther work then TUE will not apply and you wil be able to get around alot of it.

If I can help sen me an email and I will try and give you my insight on the tUE transfers that I have done.  What I have been able to change and what I have had no success in changing.

Gilbert

[Nick Head]

I am not sure I agree to all Gilbert's advice - I believe that TUPE is not timebound in respect of how long someone has worked on a particular site but it is worth checking this out. I think that Gilbert is right about staff working in more than one site for the same contractor but again worth checking out.

Nick
 

[cml]

Nick you are right TUPE is not timebound in respect of how long someone has worked with an organisation before transferring a contract .

What I think Gilbert may be saying is when standing in the shoes of the former employer the same rules apply in regards to terminating a contract if an employee has not completed a years service. But again under the circumstances of a transfer stands a high probability of being classed as wrongful dismissal should an employee bring an ET case no real justification for their termination.   

[Nick Head]

I did not think so (Thanks CML) but this only goes to illustrate the need for specialist advice - I have been involved in quite a few TUPE transfers over the years- one is never the same as an another. So if there is one bit of advice - Speak to a specialist!

Nick

[cml]

Estimated awards for wrongful dismssal cases.  ET has discretion up to £25,000. 
Things taken into consideration are: whether notice or the correct contractual notice has been given before termination,  no discriminatory aspects, no breaching of employment statutory rights etc.,  Not to scare you but all cases are individual and awarded on their own merits.  The main point is that if you do not get dismissal right during TUPE it could be costly.


(Discrimination Awards - has no monetary limits).  I hope this helps

[Nick Head]

Actually the max limit for unfair dismisal is a lot more, I believe it is around £76k

This is something that I was sent as a member the CIM, the regs changed last year

2010 Award Limit £76,700 (ie £65,300 compensatory award plus 30 X £380 for maximum basic award) from 1st February 2010 (the maximum limit on compensatory award is reduced on 1st February 2010 but there is no change in basic award. - The main change in effect from 1st February 2010 is a reduction in the limit on compensatory award for unfair dismissal from £66,200 to £65,300 in line with the 1.4% reduction in RPI for the 12 months to September 2009 (Employment Rights (Revision of Limits) Order 2009, SI 2009/3274 and see notes at Indexation of awards and/or Compensation/2010 limit changes ). There is no change on 1st February 2010 to the £380 per week limit on week's pay which was introduced on 1st October 2009."

Ouch............!!!!

However, to put it into proportion the average award is about £6k to £8K. So it is important to get it right - get advice, follow it and then it is straightforward.

Hope this helps

Nick

[cml]

Nick I agree the awards for Unfair Dismissal are statutory awards and have a monetary frameworks as a guide.  I am mindful not to confuse matters because this award takes into account a number of compensatory aspect including loss of earnings until finding alternative employment and all sorts.

 
However there is a clear distinction between awards awarded for wrongful dismissal and unfair dismissal.  In regards to employees not completing a years service who find their contracts terminated on TUPE without a real and legitimate jusfication for doing so those employees will fall under this banner.  Employees falling outside of this (having completed at least one year service) will fall into the unfair dismissal statutory award criterion.  Therefore advice is absolutely peril.

 

[Nick Head]

Yes CML you are right - Unfair and Wrongful are entirely different - I think we have now covered every eventuality!

Nick

[starplus]

Hi Dave,

have you got a copy of the letter that you send to the other contractor?

Can I have a copy please.

Many Thanks
Sergio

If the cleaner is in hospital and wont be going back you will have to cover the contract untill you recieve all the info from the present contractor.

1. you need to know if you have won the contract
2. if you have won the contract, get the client to forward contact details of the present cleaning contractor.
3. write to the contractor (recorded delivery) stating that you require all the details.

1. Ask if the member is wishing to TUPE over to you and if they can confirm this. The employee can opt out of the transfer.
2. employment contract of the staff member that is employed for that site.

What now you are presented with is this,

1. the contractor is not obliged to send you confirmation saying that they are not transfering over. So if you do not hear within 14 days. They face a fine if employee are transfering over. You could telephone but a letter is more reliable and proof that you have followed all of the prerequisits.

I would also place the TUPE REGULATION Guidence notes in as well. On the letters I send I also state clearly from ACAS that they face a £500 fine if information is with held.