Redundancy?

SarEl

Caroline_a wrote: »

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!

It isn't about whether the cleaning was optional, and it isn't about him individually teminating the contract and getting someone else to do it. It is the extent to which the "organised" termination of the contract by several people in favour of "another contract" means that TUPE applies. Without the specific details I can only suggest that it may do so.

dseventy

Hi all

Just to feedback and answer questions.

I have raised with the council the issues with cleaning (or lack of). I have disputed invoices and with-held payment in the past. I don't think I have ever paid a full invoice!

I also asked about today in the office and yes they have the same cleaners generally.

I have spoke to my legal contact (again another contract I have to provide services!) and they state that ont he facts they have I don't have to worry about it. They say any redundancy issue is between the employer and employee, and a loss of contract is just hard luck. They are going to review it with the "barristers" and draft a response for me to review and sign.

Will keep you informed!

D70

getmore4less

dseventy wrote: »

Hi all

Just to feedback and answer questions.

I have raised with the council the issues with cleaning (or lack of). I have disputed invoices and with-held payment in the past. I don't think I have ever paid a full invoice!

I also asked about today in the office and yes they have the same cleaners generally.

I have spoke to my legal contact (again another contract I have to provide services!) and they state that ont he facts they have I don't have to worry about it. They say any redundancy issue is between the employer and employee, and a loss of contract is just hard luck. They are going to review it with the "barristers" and draft a response for me to review and sign.

Will keep you informed!

D70

Did you specificaly ask about the TUPE implications of you setting up an alternative service.

Contracts probably account for the majority of situations where TUPE applies, partial sale of a business being second.

dseventy

getmore4less wrote: »

Did you specificaly ask about the TUPE implications of you setting up an alternative service.

Contracts probably account for the majority of situations where TUPE applies, partial sale of a business being second.

Yes I told him that I was going to get my own cleaner and have apprached the other businesses to see if they want to use my services also.

D70

getmore4less

dseventy wrote: »

Yes I told him that I was going to get my own cleaner and have apprached the other businesses to see if they want to use my services also.

D70

Did you use the term TUPE?

Acc72

dseventy wrote: »

Yes I told him that I was going to get my own cleaner and have apprached the other businesses to see if they want to use my services also.

D70

That does not quite answer what getmore4less asked !! ......

As you have already seen a solicitor (and this is already costing you money), you might as well be honest and up front with them - just in case the cleaners solicitor is more clued up than you think.

The situation is the situation - you might as well put all your cards on the table, and it will possible save you money in the long run.

zzzLazyDaisy

The first thing to point out is that this cannot be both a redundancy situation and a TUPE situation. Redundancy applies where the employees jobs have ceased to exist. TUPE applies where the jobs still exist but the service contract with provider (a) (the council) has been terminated and that service is now provided by service provider (b).

So, on the facts, this is a potential TUPE situation. In order to know for sure, it is necessary to establish the facts.

The first unclear fact is how is the contract currently organised?

Does the council provide cleaning services to the office block? Who is the contract with? Some intermediary? (The management company? The businesses' tenants association?) Or does the council have individual contracts with each individual business for its own individual office? What about the communal parts (stairs, reception area, entrance area etc).

If the contract is for the whole office block with one entity contracting for the services (let's say the management company) then is it a team of cleaners who cleans the whole block including common parts and individual offices? Or are particular cleaners allocated to particular offices?

Similarly, if we are talking about a series of individual contracts, does the same cleaner clean Office A every time, or is it a team of cleaners and it is pot luck who cleans which office, regardless of the fact that the individual offices have separate contracts with the council?

Or are the two individuals the cleaners for the whole block?

If the individual offices have separate contracts with the council for cleaning services, who contracts for (and pays for) the cleaning of the common parts?

So, we need to know how the contract is organised to know if TUPE is likely to apply.

For the moment, to keep things simple, lets assume that the council has the contract for the whole block, and the two cleaners concerned are employed to do the cleaning under the contract.

Their employer loses the contract. But OP continues to provide the same service for the office block. In other words, their jobs have not ceased to exist, as the same work is still being carried out by another service provider (OP). In this situation, it is highly likely that this is a TUPE situation, and the two cleaners are entitled to transfer to the new service provider (OP) with all their terms and conditions, including continuity of service, intact (there are special arrangements for pensions). If OP refuses to take over the two cleaners on their existing T&C's this is a dismissal by OP (since their employment has not ended, but has merely transferred to OP by operation of law) and is almost certainly going to be an unfair dismissal. Although if they have accepted a redundancy payment from the council, that money would be deducted from any compensation they may be entitled to, this may not cover the whole of the compensation due (if the redundancy is limited to statutory redundancy pay, and they fail to find alternative work on similar benefits, it almost certainly won't).

The above is just an illustration. It may or may not fit with the facts in OP's situation. But what it is intended to illustrate is that TUPE is complicated and it is easy to get it wrong. A 5 minute telephone call with a legal adviser is unlikely to get to the bottom of it - you need to see a specialist employment lawyer. You can either instruct a specialist barrister directly (I believe the rules have changed since my day, but I am sure SarEl can confirm this) OR you need to see a firm of commercial solicitors that has a specialist employment solicitor.

Or you can keep your fingers crossed and hope that it all goes away (which it might... not all employees have the bottle or resources to follow through with tribunal proceedings).

Uncertain

zzzLazyDaisy wrote: »

Or you can keep your fingers crossed and hope that it all goes away (which it might... not all employees have the bottle or resources to follow through with tribunal proceedings).

This is a very important point.

How are these two cleaners funding this? Presumably it is not via a union as I assume this would be obvious from the solicitor's letter?

If they are self funding I imagine they won't have the resources to pay a couple of hundred pounds an hour for long. They won't get their costs at an employment tribunal even if the win.

No win no fee? It is hard to see that they are likely to win enough to make this attractive.

Just a thought........

SarEl

zzzLazyDaisy wrote: »

The above is just an illustration. It may or may not fit with the facts in OP's situation. But what it is intended to illustrate is that TUPE is complicated and it is easy to get it wrong. A 5 minute telephone call with a legal adviser is unlikely to get to the bottom of it - you need to see a specialist employment lawyer. You can either instruct a specialist barrister directly (I believe the rules have changed since my day, but I am sure SarEl can confirm this) OR you need to see a firm of commercial solicitors that has a specialist employment solicitor.

Or you can keep your fingers crossed and hope that it all goes away (which it might... not all employees have the bottle or resources to follow through with tribunal proceedings).

I agree entirely. Even knowing TUPE inside out it is impossible for me to say with certainty anything more than TUPE may apply, given the details available. Although it does appear that the cleaners have not been made redundant - I think they are at risk (the letter said they have been given notice), so their legal advisor is certainly striking while the iron is hot, so to speak. But yes, I assumed that dseventy would know enough not to depend on the advice of a generalist, but you are right to point out that specialist advice is what is needed.

Uncertain wrote: »

This is a very important point.

How are these two cleaners funding this? Presumably it is not via a union as I assume this would be obvious from the solicitor's letter?

If they are self funding I imagine they won't have the resources to pay a couple of hundred pounds an hour for long. They won't get their costs at an employment tribunal even if the win.

No win no fee? It is hard to see that they are likely to win enough to make this attractive.

Just a thought........

But not entirely a route I would recommend depending upon. OP is already wracking up the bills if it goes little distance further - lets just say that even now it will be a long time before he breaks even on the cleaning bill again! It is dangerous to assume that they can't fund this (after all, by luck or by design they appear to have landed on a lawyer who has pulled a fine definition of TUPE out of the hat) - they may have legal insurance (lots of people do now, sometimes without even knowing it); they may be union members (we don't actually tell the opposition that our union referred clients are union members and being paid for by the union!); it may be a law centre solicitor or one that offers services for CAB... If the argument that they are unlikley to be able to fund an action held that validly, they probably wouldn't have taken legal advice in the first place. Having done so I would suggest that the only safe assumption is that they will take it as far as they can. Which may not be far, but it also may be all the way.

Assuming they made a tribunal claim, we can, on the OP's own version of events, safely discount this being judged a malicious or frivolous claim - the issue is not whether they have a case but whether they have a winning case. Even if the OP wins the case the costs could be so substantial as to make it more worthwhile to settle. Legal opinion in the OP's favour (which will be costly itself) will only tell the OP that they have a good chance of winning - it won't pay the bill for winning Part of the lawyers job (if they have morals) should be to advise the OP not just on the merits of their case, but equally on the merit of fighting it. Bearing in mind that a barristers opinion, depending on complexity and location, could cost £2-3k (a guess - it may be a little less or more), plus the solicitors fees already, then the costs of potentially fighting a case (a cheap estimate would be £7 - 10k)... well actually £2k each to go away could be an investment

zzzLazyDaisy

SarEl wrote: »

I assumed that dseventy would know enough not to depend on the advice of a generalist, but you are right to point out that specialist advice is what is needed.

My concern was with OP's comment that:

'I have spoke to my legal contact (again another contract I have to provide services!) and they state that ont he facts they have I don't have to worry about it.'

That sounds more like the sort of telephone advice line advice line that some employment law consultants provide, which are often not staffed by solicitors, and may not be sufficiently specialist in this situation (although some also provide insurance and representation in the event of a claim, so that could be useful).

But perhaps I am reading too much into OP's comment.