Agency staff and TUPE

nicky25_2

Hi all

Some advice please.

Can agency staff be Tuped over to a new employer? Said staff do have a contract as they were Tuped once before but is the new employer legally obliged to Tupe them over?

x

Jarndyce

Usually, agency staff are not included in a TUPE transfer as there is no employment contract with the transferor, only with the agency supplying them the staff. However your second sentence suggests that there may be a complication with that usual scenario. What does the transferring employer say is the situation?

SarEl

As agency staff you could not legally have been TUPE'd. The agency may have retained the contract with the new employer, enabling you to carry on working, but that is not a TUPE. Your employer is the agency - not the client. TUPE roghts apply to the employer's emplyees - not agency staff.

Jarndyce

SarEl wrote: »

As agency staff you could not legally have been TUPE'd. The agency may have retained the contract with the new employer, enabling you to carry on working, but that is not a TUPE. Your employer is the agency - not the client. TUPE roghts apply to the employer's emplyees - not agency staff.

Yes that's assuming they are actually agency staff. The point is that they might think they're agency staff, but the relationship may well have changed since it started, especially as the OP says they 'have a contract' and have been 'TUPEd once before'! Clearly that can't happen if they are pure agency staff, but why do they think it has happened? That needs to be clarified. If it is just that the new employer took up a similar or identical contract with the agency, then of course you are correct, but there are other possibilities. So the precise relationship needs to be looked at rather than just accpeting the label that has been given.