Employed by security agency but contract lost. Where do I stand.

sharkmeister

Hi

I will try and explain this as best as I can. My wife is currently employed by a security agency and has always worked every Thur, Fri and Sat night for the last 5 years at the same place of work.

She has found out today that the pub now has a franchisee in place and he is not willing to honour the security contract that is in place thus not requiring her services for this weekend. I am under the understanding that she should still be paid for this weekends hours as she has not been given the minimum notice period by law. Am I right in assuming that the minimum by law would be 1 week or is this longer given her length of service. E.g. would she be entitled to additional weeks pay.

She has also found out that the staff employed by the pub itself e.g. barstaff have got some grace as the Franchisee has a signed for a TUPE (transfer of undertaking) which means he has legally got to employ them for a minimum of six months. I understand that my wife is not covered by the TUPE as she is an employee of the security agency.

She has been told by her employer (the security agency) that they are in negotiations about the contract not being fulfilled by the pub. What i want to know is if the pubs contract with the security company is terminated then they would get a payout via way of compansation due to the contract not being able to be fulfilled.

Now if the contract would have carried on as normal then my wife would be continue to be paid as normal. However am I right in thinking that she could potentially be looking at a claim for loss of earnings. At no point has anyone sat down with her and explained what would be happening. Does she have grounds for constructive dismissal or redundancy if they expect her to travel an unreasonable distance to another venue, also what would be classed as unreasonable distance? e.g. if they expected her to travel 30 miles for 3 hours work can she refuse this as unreasonable? Something doesn't sit right with me so is it worth taking legal advice to see if we can request a copy of the contract between the pub and the security agency?

Any advice appreciated as this is such a grey area.

Cheers

marybelle01

The terms and conduct of the contract between the employer and their client is not your wife's business, and the franchisee has no legal obligations to your wife at all. The terms of her employment are set out in her contract of employment and that is where the answers to your questions lie. Whether they have to pay her, whether there is a mobility clause and what the terms of that are etc., are regulated by that document - the dispute between the security company and the franchisee is between them and not relevant to her employment terms.

getmore4less

Depends what is happening to the contract,

if the new franchisee takes up another contract or plans to employ direct she may be covered by TUPE.


In the mean time she needs to check her contract with the agency, they may still have to pay her but if it is a variable hours contract with the relevent clauses they may not.

sharkmeister

getmore4less wrote: »

Depends what is happening to the contract,

if the new franchisee takes up another contract or plans to employ direct she may be covered by TUPE.


In the mean time she needs to check her contract with the agency, they may still have to pay her but if it is a variable hours contract with the relevent clauses they may not.

Thanks for your reply. Is there any way a lawyer would be able to request what was the outcome with regards to the contract or does she as an employer have to be informed, it just seems like she has no right or protection what so ever.

With regards to the contracts I would imagine it is a variable hours contract as they are an agency but I would have thought given that she has worked at the same place for the last 5 years doing roughly the same hours every week (normally 9-12.30 Thur, 8 - 1.30 Fri and 9 - 1.30 Sat) she has some sort of rights under the 12 week rule. Also wouldn't they have to work out some sort of average number of hours over the last 3 months? She also has 5.6 weeks holiday as normal every year also. They are a london based company and I'm not sure what other venues they have locally so not sure what other work they can offer?

Is any grounds for going to a solicitor and who would you lodge the claim at? Surely it can't be the security company as they would be out of pocket or would the claim be against the pub chain as they have basically pulled the contract?

getmore4less

can't comment much on what your asking but the contract with the agency is a starting point, also try redundancyforum

She never worked for the pub but it is worth checking if the contract should have been a TUPE

If the pubs in my town had no one on the door busy nights checking ID they would spend a lot of time at the bar checking for underage rather than selling drinks.

I would check who is on the door now, I though this(door staff) sector was a fairly close community that looked after each other.

The security company should be looking for other work for her while they sort it out, if they have terminated her contract with them then that's down to the contract with them.

sharkmeister

getmore4less wrote: »

She never worked for the pub but it is worth checking if the contract should have been a TUPE

The security company should be looking for other work for her while they sort it out, if they have terminated her contract with them then that's down to the contract with them.

Thanks again. So what you are saying on the first point is that the security contract between the pub and the security firm could actually be part of the TUPE?

With regards to her employment. They have said they are investigating where they stand so at the moment she is still employed by them although she was only informed yesterday by the pub franchisee that she is not required to work this weekend so surely that is not enough notice. We won't know who is on the door until this weekend but suspect it will be a more local firm who the franchisee knows. With regards to our town its quite small and everyone is always looking for new work so there can be some two faced people. It's only really the oldskool doormen who look after each other.

It just feels like she has no rights what so ever as she is agency.

marybelle01

Security firm employee or agency worker? You aren't being clear, and it actually does matter. You have said frequently she is an agency worker. If it is an agency then the agency and the client are responsible for sorting out their contract issues and it is nothing to do with her. her issues are with the agency as an agency worker. Agency workers are not covered by TUPE.

sharkmeister

I have also just come across this on the following solicitors website:

https://www.solts.co.uk/downloads/QG_TUPE.pdf

The extract below is on the first page, second section down.

When does TUPE apply?
The classic situation where TUPE applies is where a trade or business is sold to a new
owner. (Share takeovers are not covered because the employer remains the same despite
the change in share ownership).
TUPE has, however, been held to apply in a much wider range of circumstances. These
include the contracting out or "outsourcing" of a service, a change in contractors, the creation of a franchise and the giving and ending of a grant.

Could this mean she could be covered then?

sharkmeister

marybelle01 wrote: »

Security firm employee or agency worker? You aren't being clear, and it actually does matter. You have said frequently she is an agency worker. If it is an agency then the agency and the client are responsible for sorting out their contract issues and it is nothing to do with her. her issues are with the agency as an agency worker. Agency workers are not covered by TUPE.

Hi Marybelle. She is employed by the security firm who operate a number of doors nationwide so that is why I am saying she is working for an agency. It's such a grey area hence why I am posting on here for opinions. Something is not quite right with this.

Basically the security firm have a contract to provide doorstaff to the venue. I'm presuming if they wanted to they could have moved her from venue to venue but in the last 5 years she has never been asked to work anywhere else.

marybelle01

sharkmeister wrote: »

Hi Marybelle. She is employed by the security firm who operate a number of doors nationwide so that is why I am saying she is working for an agency. It's such a grey area hence why I am posting on here for opinions. Something is not quite right with this.

Basically the security firm have a contract to provide doorstaff to the venue. I'm presuming if they wanted to they could have moved her from venue to venue but in the last 5 years she has never been asked to work anywhere else.

What they haven't asked her to do isn't relevant. It is down to her contract with her employer. If they can move her, then they can move her after fifty years in one place. At this point in time speculation about TUPE is useless - it depends on whether the franchisee replaces the security or not, and what the terms of the relationship in law are with the firm and their client. She doesn't have a right to their contracts - she has a right to her own contract with her employer. Her employer must deal with the employment issues. She needs to be asking her employer what her situation is - if we don't know what they are saying, then everything is useless speculation about might be's.

sharkmeister

marybelle01 wrote: »

What they haven't asked her to do isn't relevant. It is down to her contract with her employer. If they can move her, then they can move her after fifty years in one place. At this point in time speculation about TUPE is useless - it depends on whether the franchisee replaces the security or not, and what the terms of the relationship in law are with the firm and their client. She doesn't have a right to their contracts - she has a right to her own contract with her employer. Her employer must deal with the employment issues. She needs to be asking her employer what her situation is - if we don't know what they are saying, then everything is useless speculation about might be's.

But surely her 5 years at the same place has got to have some standing. If my company asked me to relocate to a different office and I though it was unreasonable they would have to give me 1 weeks notice for every year I've been employed there to move or offer me redundancy. Surely she has some sort of protection from this. She's basically been told you have no work now, thanks for the last five years. Surely that is wrong?