company lost cleaning contract and tupe

k12479

marybelle01 wrote: »

Yes there is. As Jimavfc82 has pointed out, you cannot be made redundant because you are TUPE'd. The staff on a contract go with the contract. This is a TUPE. If the new employer then has too many staff they must carry out a redundancy process that covers all the staff, not just the TUPE'd staff. Otherwise the employer is breaking the law. Alternatively it is possible for staff to be offered redundancy before the TUPE, but they cannot be forced to take such an offer since they have TUPE entitlement, and cannot be required to waive that right.

Not my area of expertise, but I think bap98189 and bluesnake have a point.

ACAS website says TUPE protects employees "...when a business is transferred from one owner to another." and that it doesn't apply to "transfer of a contract...where this doesn't involve the transfer of a business or part of a business".

marybelle01

k12479 wrote: »

Not my area of expertise, but I think bap98189 and bluesnake have a point.

ACAS website says TUPE protects employees "...when a business is transferred from one owner to another." and that it doesn't apply to "transfer of a contract...where this doesn't involve the transfer of a business or part of a business".

In that case ACAS are wrong again. If there is one employment thing that a manager in social services knows about it's TUPE rights and contracts! There is very very clear law covering this matter, and the transfer of contracts is definitely TUPE.

But on this one I have the government website that agrees with me! http://www.direct.gov.uk/en/Employment/RedundancyAndLeavingYourJob/DG_10026691

In the circumstances that the OP has described - they are employed by Company A and the contract for the work which they are engaged in has been re-tendered and won by Company B, then TUPE applies.

Wellery82

k12479 wrote: »

Not my area of expertise, but I think bap98189 and bluesnake have a point.

ACAS website says TUPE protects employees "...when a business is transferred from one owner to another." and that it doesn't apply to "transfer of a contract...where this doesn't involve the transfer of a business or part of a business".

A service provision (ie a cleaning contract) is also protected by TUPE. The only argument around it i believe would be if staff were self employed, or the company argued the employment model meant that staff were not directly linked to that contract, and they were more freelance in the company. If you speak to ACAS however they could clarify for you

bluesnake

I am probably not at the personnel level of many here, nor have the business acumen, so my guess could be very wrong.

This is how I see it: Bluesnake Rail is about to have have its cleaning contract come to an end, so I have put forward a cleaning tender for 2 years. Red Pig cleaners have not been successful with their bid, but Green Dog cleaners will be starting in a months time.

There is no transfer of service or business, just expiry of contract, so no TUPE is required.

Many companies like Red Pig, want to keep their current service working and keep employees in the dark disenfranchised employees are not good, so tell them nothing till the last second. It keeps staff from looking and going for interview, but more importantly keeps them working to fulfil the current contract of the company.

Unless Red Pig is huge and the Bluesnake Rail contract is small, Reg Pig will not be able to absorb excess staff salaries. There are a few way for Red Pig to cope: Reduce staff hours. Redundancy. Let the business go under. Form a separate company and move the assets and other income generating business to that company and let Red Pig still go under, but new company will be protected and still earning. If Red Pig do go under there will probably be little if any money left, so expect the redundancy pot to be £0 and no holiday or holiday money.

Have a look here, see whom your directors are, and if they already have similar company http://company-director-check.co.uk/ This is sometimes apparently takes a few months for them to update. They may legitimately have another company that offers a similar service too.

Green Dog has staff, so does not want to take Red Pig's staff and it is too much paperwork plus the inherited problems including: length of service perks, performance schemes and should people need to be made redundant - the pay-off for the total number of years service. Also Green Dog, can just put an ad in the paper, especially in these troubled times.

I would be very nice and light and phone the new company, ask what was happening - just shoot the breeze. If you come accross as nasty, full of venom, pain and hurt, then this could be detrimental.

Claim your holiday !!!!
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...even before my boss new about it,so i did the right thing and told him and he didnt even know about this,a week later he rang me to say yes we have lost the contract and you will be tuped over to them,hmmm well two more weeks have gone and no one knows nothing about it...

Soul75, think you caught them on the hop, and to stop bad news spreading, spun you a line. It takes a minimum of 60 days consultation to the TUPE'd staff http://www.direct.gov.uk/en/employment/employeeinformationandconsultation/dg_10028095

If they are TUPEing staff, and they fail to inform and consult, each staff member could get a maximum 13 week salary http://www.out-law.com/page-448

Anything not written down, or in a email is a lie! very hard to prove any verbal conversations.
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Yes there is. As Jimavfc82 has pointed out, you cannot be made redundant because you are TUPE'd. The staff on a contract go with the contract. This is a TUPE. If the new employer then has too many staff they must carry out a redundancy process that covers all the staff, not just the TUPE'd staff. Otherwise the employer is breaking the law.

In TUPE there is no redundancy except after a certain period people can be made redundant if that reason is an "economic, technical or organisational (ETO) reason entailing changes in the workforce." and often in this 'restructure' they get rid of the staff they do not want from both the old and new company. This usually cost redundancy money, and since it is a cleaning contract with personnel, rather than a business with assets deemed to be bought cheaply, bet they are not going to go down that route.

BlueIsTheColour

Acas isn't wrong, it clearly states:-

• a contract to provide goods or services is transferred in circumstances which amount to the transfer of a business or undertaking to a new employer.

which is what this is, a service provision change. The company has lost the contract, the staff transfer to the new contractor on the same T&C's. Happens all the time with cleaning contracts and security provision.

http://www.acas.org.uk/index.aspx?articleid=1655

katsu

bluesnake, you are not correct. As has been stated service provision changes are covered by TUPE.

The train company are not likely to want a gap where no-one does their cleaning, so this seems to be a service provision change and therefore the OP would be covered by TUPE.

OP - do you know when your company's contract finishes/the new one takes over? If it is a long time that may explain why no-one has contacted you yet.

bluesnake

The services are not being transferred though Just different company employed.

They could for a period of time have both contracts overlap.

Ok, my council took on a different refuse company, so for one month I had my bins emptied twice a week. I'm sure the new bin company did not take over the old bin companies staff!

BlueIsTheColour

It is the provision of the services that is changing, the cleaning company in this case... The contracting company still need their toilets cleaned etc, it is the provision of those services that will change, the service is the same, hence service provision change, not just service change...

In your example, the new bin company would have taken the old bin companies staff, if the first bin company had been contracted externally too. If this was the first time it was outsourced, the employees could still potentially change to the new company.

These pages offer a bit more explanation
http://www.emplaw.co.uk/lawguide?startpage=data/095011.htm
http://www.shoosmiths.co.uk/news/3931.asp

bluesnake

BlueIsTheColour wrote: »

It is the provision of the services that is changing, the cleaning company in this case... The contracting company still need their toilets cleaned etc, it is the provision of those services that will change, the service is the same, hence service provision change, not just service change...

In your example, the new bin company would have taken the old bin companies staff, if the first bin company had been contracted externally too. If this was the first time it was outsourced, the employees could still potentially change to the new company.

These pages offer a bit more explanation
http://www.emplaw.co.uk/lawguide?startpage=data/095011.htm
http://www.shoosmiths.co.uk/news/3931.asp

Thanks, sorry to get you to educate me due to poor schooling Being a devils advocate, what happens if the company ran both services simultaneous for two months, and the first contract just lapses? Clearly if they take the new staff on they would be 100% overstaffed and what is the minimum time before restucture and getting rid of staff that way.

http://www.shoosmiths.co.uk/news/3931.asp
Two exceptions apply so that TUPE will not apply if:

• the activities concerned are wholly or mainly the supply of goods for the client’s use; or
• the client intends that the activities will be carried out after the transfer in connection with a single specific event or task of short-term duration.

Surely these means that TUPE does not apply to the cleaners. You may have to fudge it a bit like the main activity supplying toilet roles on the first one. Cleaning as a single specific event on the second?

My friend was made redundant 10 years or so ago, a few months after TUPE.

Savvy_Sue

soul75 wrote: »

not had a hols for over a yr due to only me being able to do the job,which at first i didnt mind but now its getting to me,

err, that was a bit daft of you, to ALLOW them to withhold your holidays! When does the holiday year begin and end? I'd say you have nothing to lose by raising a grievance, did you actually request holidays and have them turned down in the previous holiday year?