Redundancy?

dseventy

Hi all

This question is asked from the employer perspective, in the absence of my legal adviser(s) who are not available at the moment. Would appreciate the views of the board.

I run my own business and one of my offices in Birmingham ( i have 12 UK "hubs"). We lease (12 month lease) the top 2 floors of a small office block (council owned). Each month I pay a rent for the space, and an optional payment for office cleaning.

The cleaning part is paid for 3 months in advance and covers the office being cleaned and other associated cleaning jobs (ie vacuming, cleaning the desks, emptying bins, cleaning of tea room etc).

Every 3 months I am offered a new contract to sign up to for cleaning. A few other companies in the building also sign up.

Due to various issues (poor cleaning, rooms still dirty, poor service, dirty communal areas) I have decided from April not to continue with the service offered and employ my own cleaner.

To make things more complicated, I have approached other tenants in the building and offered the services of my-soon-to-be-employed cleaner to them. My offer to them is better than that currently offered by the council/building.

Since serving notice (and therefore other tenants also have) I have been written to by a solicitor acting for the two members of staff currently employed by the council.

They state that

• Since I did not renew they have been given notice of redundancy by the council.
• Since I subsequently have gone on to advertise for a cleaner(s) and this covers what they used to do, its a "redundancy situation".
• There are implications for TUPE and "right due process" given the circumstances.

Am I right in assuming this is a load of rubbish and nothing to do with me? Surely the council will deal with all redundancy issues relating to these people?


I cant speak to my brief until Monday, opinions welcome!

EDIT to add : The solicitor is acting for the individuals, not the council, their feedback is that is a "private matter".


D70

SarEl

No, you may not be right. There is certainly case law -can't recall the exact case now and reading case law on my tablet is like stuffing the Bible on a postage stamp - but it appears it may be directly applicable. It was also cleaners! Shop terminated the contract for the same reason (bad cleaning), didn't TUPE, should have done. Ended up sadly for the shop! You cannot ignore this. And make sure that your lawyer knows what they are doing - this isnt straightforward stuff!

dseventy

SarEl wrote: »

No, you may not be right. There is certainly case law -can't recall the exact case now and reading case law on my tablet is like stuffing the Bible on a postage stamp - but it appears it may be directly applicable. It was also cleaners! Shop terminated the contract for the same reason (bad cleaning), didn't TUPE, should have done. Ended up sadly for the shop! You cannot ignore this. And make sure that your lawyer knows what they are doing - this isnt straightforward stuff!

Thanks for the advice. Any link to case law or examples would be helpful.

D70

getmore4less

Bit of a mess don't under estimate where this could go

Really should have been pushing back on the cleaning contract for under performance etc to get better cleaners.

Were you were all getting the same cleaners all the time(except for holidays)

You now risk inheriting the problem AND the employees service should you want to make them redundant because they still can't clean

Under performance disiplinary will take up a lot of time to manage them out.

With luck they may have variable/zero hour contracts, but I bet the councill may have made them fixed now they see them getting TUPEd

Really should have gone just for your own cleaning to start with and left the others to renew, then picked them off one at a time.

One option might be to cancell all the contracts with the other places but it may have gone to far.

How many hours did you advertise for and how many have you promised the potential new employee.

SarEl

Haven't found the case law yet (tablets are not the best for research), but I have done a bit of digging for you, and I think I have your "flaw". It is, I think, a DIY flaw - you did it to yourself! For TUPE to apply the employees must be dedicated to one client. In your case they were not - in your case. So if you had terminated the contract on your own and left it at that then you would have been free and clear. However, you didn't - you acted as an employer of a cleaning service and brokered their services to others. Effectively you have become a cleaning contractor - or that is what you appear to be saying here. If you did that, then I am afraid that you did indeed "do it yourself", and TUPE probably does apply. Which leaves you with one of two possibilities (given that I know TUPE law and most solicitors don't) - you have a very clever solicitor who knows what they are doing, or they are chancing it and don't know what they are doing. It took me a couple of hours to work it through even knowing what I am doing (and on a 7 inch screen!), so they are good or lucky! But one way or another I think this will cost you to make it go away - sorry. You know damned well that a tribunal claim will cost you an arm and a leg whether you win or not, and there is a real prospect (based of course on what you have said here) that you may lose. I seriously hope your lawyer is good. You may be in trouble.

And just to note that I only did this for you because I know you try to be a decent employer - as you know I generally don't help employers out at all!

Best get legal advice before you implement good ideas next time, eh???

firesidemaid

Just as a matter of interest, did the poor performance of cleaners get reported to the council?

if so, what did the council do to manage or rectify the situation?

Uncertain

SarEl wrote: »

Haven't found the case law yet (tablets are not the best for research), but I have done a bit of digging for you, and I think I have your "flaw". It is, I think, a DIY flaw - you did it to yourself! For TUPE to apply the employees must be dedicated to one client. In your case they were not - in your case. So if you had terminated the contract on your own and left it at that then you would have been free and clear. However, you didn't - you acted as an employer of a cleaning service and brokered their services to others. Effectively you have become a cleaning contractor - or that is what you appear to be saying here. If you did that, then I am afraid that you did indeed "do it yourself", and TUPE probably does apply. Which leaves you with one of two possibilities (given that I know TUPE law and most solicitors don't) - you have a very clever solicitor who knows what they are doing, or they are chancing it and don't know what they are doing. It took me a couple of hours to work it through even knowing what I am doing (and on a 7 inch screen!), so they are good or lucky! But one way or another I think this will cost you to make it go away - sorry. You know damned well that a tribunal claim will cost you an arm and a leg whether you win or not, and there is a real prospect (based of course on what you have said here) that you may lose. I seriously hope your lawyer is good. You may be in trouble.

And just to note that I only did this for you because I know you try to be a decent employer - as you know I generally don't help employers out at all!

Best get legal advice before you implement good ideas next time, eh???

Interesting....

Does the OP have contracts in place with the other tenants to use his new "cleaning service" or is this just an outline idea at this stage?

From what you are saying, if the other tenants just happened to independently hire the same individuals directly for a few hours a week and not go through the OP there would presumably be no problem?

Just a thought......

getmore4less

I suspect the councill are behind this,

They will be looking to save the redundancy payments.

Did you really have all have the same cleaners all the time?

SarEl

Uncertain wrote: »

Interesting....

Does the OP have contracts in place with the other tenants to use his new "cleaning service" or is this just an outline idea at this stage?

From what you are saying, if the other tenants just happened to independently hire the same individuals directly for a few hours a week and not go through the OP there would presumably be no problem?

Just a thought......

I don't know any more detail than has been posted, but judging by the information there the OP has at least agreed verbal conditions with other tenants and advertised for staff on that basis. So it seems that there is much more than an outline idea, so retrenching now may not be possible as we could then end up in allegations of attempting to subvert TUPE and unfair dismissal. But the devil is in the detail and it does need reviewing by someone who can go through that detail.

SarEl

getmore4less wrote: »

I suspect the councill are behind this,

They will be looking to save the redundancy payments.

Did you really have all have the same cleaners all the time?

If the council were behind it then they would be using their own solicitors and not private solicitors representing the cleaners. Since TUPE applies to both the existing and new employer, and both may be held equally liable if the law has been broken then why on earth would they have an interest in arguing this is a TUPE? They are staying out of it because from their point of view they are currently in the clear - some of their tenants terminated their agreements for cleaning; they were neither told nor aware of any potential alternative cleaning arrangements which may involve TUPE; and unless anyone can prove otherwise they have done nothing at all wrong. The legal costs of defending a claim under TUPE would far exceed anything they are likely to pay a couple of cleaners in redundancy. They are very wisely saying that this has nothing to do with them. And since it doesn't have anything to do with them, then that would be true.

Caroline_a

Might the answer to this be the term 'optional' that the OP said the cleaners were. What if he had decided that to save money he would get his staff to do the cleaning? Also, what is to stop the council from redeploying those staff elsewhere?

Interesting scenario!