TUPE Law and Contract Cleaners

donteatthat

Hi, hope someone can advise me.
I am a co-owner of a small business and we have a contract with a cleaning company. We have cancelled this (3 months notice) as we have had several issues over the course of our time with them. The final issue is that we checked the alarm settings and the cleaner was spending substantially less time cleaning than we were paying for.
The cleaning company are now citing TUPE law at us basically saying we have to keep our cleaner who will transfer to the new cleaning company.
Is this right? I am inclined to think they are bending the law to be difficult.
Surely the cleaner is an employee of the now sacked cleaning company, and we are not obliged to keep her? If so, can I do a dismissal myself as if she was an employee of mine she would have been sacked for gross misconduct because of theft and deception.
TIA,
DET

mj12_2

"The Transfer of Undertakings (Protection of Employment) Act provides protection for employees when the business they work for undergoes a change of ownership, ensuring that the transition from one employer to the other is conducted fairly."

Pretty sure they are just being awkward but i expect someone with more knowledge will be along to help you presently :-)

http://www.contractoruk.com/news/002934.html

That link might help, are your current cleaners contractors or permanent employees of your current cleaning company?

If you can prove entry to and exit from your building by the cleaners then I would demand a refund of the unworked time from them as well, or deduct the amount from your final invoice. No point paying for what you havn't received.

SarEl

Rubbish. Obviously the company also want shut of the cleaner as much as you do! You have a contract for services with the company. You don't like the service standard so you have terminated the service. End of.

TUPE only applies if the clenaing company sell or transfer their company to another company to provide the same service.

mj12_2

SarEl wrote: »

TUPE only applies if the clenaing company sell or transfer their company to another company to provide the same service.

Thats what i thought initially as well but apparently a recent court case changed that (see the link i posted)

mizzbiz

Wow mj12 - that is a new one on me. The law really is an A$$ isn't it.

If I was you I would just employ a self-employed cleaner - or hire someone on a casual basis. This ruling makes no sense whatsoever but that would certainly circumvent what your sacked provider are trying to do.

Did this cleaner only or predominantly clean for your company, or did she go out to a number of other companies? It does sound like her current employers want rid!

mizzbiz

Wow just discovered that this ruling isn't necessarily new -

From yougov

Contractors

If you are employed by a contractor (eg in catering or cleaning) who loses a contract to another contractor, you should turn up for work as normal, unless you are told otherwise. You and your employment contract will usually transfer automatically to the successful contractor.
If you find there is no job for you, you can consider making a claim for unfair dismissal against both employers in an Employment Tribunal. You may also have a claim for failure to consult before a TUPE transfer.

mj12_2

mizzbiz wrote: »

Wow just discovered that this ruling isn't necessarily new -

From yougov

Contractors

If you are employed by a contractor (eg in catering or cleaning) who loses a contract to another contractor, you should turn up for work as normal, unless you are told otherwise. You and your employment contract will usually transfer automatically to the successful contractor.
If you find there is no job for you, you can consider making a claim for unfair dismissal against both employers in an Employment Tribunal. You may also have a claim for failure to consult before a TUPE transfer.

Good find, seems crazy doesnt it!!! Seems like one isnt allowed to choose who provides ones services anymore, and the gov wonder why the economy is up the creek. A better balance of rights is definitely needed.

donteatthat

Ridiculous but I guess this is not a problem for me in that the employment issue is between the 2 cleaning companies.
Suffice to say I do not want to be having this cleaner in my building whoever she is working for
Thanks guys

SarEl

mj12 wrote: »

Thats what i thought initially as well but apparently a recent court case changed that (see the link i posted)

Sorry - I did not make myself clear enough. TUPE to another employer only applies if the transfer is direct. It is not the case, as the company stated here, that the contracting company must "keep the cleaner" who will transfer to the new contracting company. The loss of a contract to another firm means that employment contracts may have to be transferred between one contractor and another (it depends on the exact circumstances), and has since 2006. So the new contractor (assuming there is one) may inherit the cleaner. There is no law in the land that says the OP inherits them or must have them on their premises. So the OP has absolutely no legal or any other obligation.

At no point in time has the OP ever been the employer, nor will they ever become the employer - so there is no risk at all to them. So what the company said was - as I said, rubbish.

Googlewhacker

mj12 wrote: »

Thats what i thought initially as well but apparently a recent court case changed that (see the link i posted)

It's dated 5 years ago....not that new!

SarEl

Googlewhacker wrote: »

It's dated 5 years ago....not that new!

I perhaps should also point out that I am fairly sure the court case never happened - I think it settled out of court! I'd have to check as my memory isn't perfect, but I think I am correct