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TUPE & bad contracts
ssdr
Posts: 2 Newbie
I am dealing with a case whereby Company A had contracted Cleaning Co to carry out their cleaning services. A contract was signed for a term of 2 years. The contract is poor - doesn't even state minimum hours and also omits cancellation / termination provisions. Company A have experienced repeated bad service from the cleaner they have through Cleaning Co. Company A have expressed their concerns on several occasions with no resolution offered.
Company A have now decided to serve a reasonable notice of termination, and will pay for the services received to put the matter to bed.
Cleaning Co are saying Company A need to take on the cleaner under TUPE etc, but Company A do not want the cleaner first of all as they have not been performing their duties under the contract for the past 6 months. Second of all, the services have now changed as Company A has made changes to the office (with nobody now occupying a once occupied floor), thirdly Company A now has a internal Office Assistant who does all the cleaning services (this is now done in house). Does any of the above help with TUPE not applying in this case?
I know there are prior threads on this but they seem quite outdated, so it would be good to have a more recent view.
Thank you!:money:
Company A have now decided to serve a reasonable notice of termination, and will pay for the services received to put the matter to bed.
Cleaning Co are saying Company A need to take on the cleaner under TUPE etc, but Company A do not want the cleaner first of all as they have not been performing their duties under the contract for the past 6 months. Second of all, the services have now changed as Company A has made changes to the office (with nobody now occupying a once occupied floor), thirdly Company A now has a internal Office Assistant who does all the cleaning services (this is now done in house). Does any of the above help with TUPE not applying in this case?
I know there are prior threads on this but they seem quite outdated, so it would be good to have a more recent view.
Thank you!:money:
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Comments
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I am dealing with a case whereby Company A had contracted Cleaning Co to carry out their cleaning services. A contract was signed for a term of 2 years. The contract is poor - doesn't even state minimum hours and also omits cancellation / termination provisions. Company A have experienced repeated bad service from the cleaner they have through Cleaning Co. Company A have expressed their concerns on several occasions with no resolution offered.
Company A have now decided to serve a reasonable notice of termination, and will pay for the services received to put the matter to bed.
Cleaning Co are saying Company A need to take on the cleaner under TUPE etc, but Company A do not want the cleaner first of all as they have not been performing their duties under the contract for the past 6 months. Second of all, the services have now changed as Company A has made changes to the office (with nobody now occupying a once occupied floor), thirdly Company A now has a internal Office Assistant who does all the cleaning services (this is now done in house). Does any of the above help with TUPE not applying in this case?
I know there are prior threads on this but they seem quite outdated, so it would be good to have a more recent view.
Thank you!:money:
Presumably Company A have a lawyer that can write a letter to cleaning co asking them which non-existent legislation requires them to take on their employee when they have no wish to.Originally Posted by shortcrust
"Contact the Ministry of Fairness....If sufficient evidence of unfairness is discovered you’ll get an apology, a permanent contract with backdated benefits, a ‘Let’s Make it Fair!’ tshirt and mug, and those guilty of unfairness will be sent on a Fairness Awareness course."0 -
Hi nicechap. Not at the moment, despite the contract being poor - it does state Company A must have to comply to TUPE. This is what the Cleaning Co are are pushing on that Company A have no way out, but i'm sure given some of the circumstances mentioned - there must be a way where TUPE does not apply.0
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Hi nicechap. Not at the moment, despite the contract being poor - it does state Company A must have to comply to TUPE. This is what the Cleaning Co are are pushing on that Company A have no way out, but i'm sure given some of the circumstances mentioned - there must be a way where TUPE does not apply.
Sounds like a bizarre contract, still doesn't compel them to take on Cleaning Co's employee.
As the contract is not being performed, (you claim an employee of Company A is doing the job instead), its clear the contract is not being performed.
If Company A can afford to employ multiple people as well as rent floors they do not need, they can engage a lawyer rather than relying on opinions on the internet from people who cannot read the contract in its entirety.
In what capacity are you acting for Company A that you have stumbled upon here?Originally Posted by shortcrust
"Contact the Ministry of Fairness....If sufficient evidence of unfairness is discovered you’ll get an apology, a permanent contract with backdated benefits, a ‘Let’s Make it Fair!’ tshirt and mug, and those guilty of unfairness will be sent on a Fairness Awareness course."0 -
I disagree. It is entirely possible that TUPE applies and there are an awful lot of similar cases that have been won at tribunal. I think the company need proper legal advice and not the advice of total strangers on an anonymous website. Whatever the cost of legal advice, it will be cheaper than losing a tribunal.0
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Even if TUPE applied there is a redundancy situation for the transfered employee.
Worth checking their contract and start date.
Could be zero cost anyway.0 -
Not necessarily. There might be a redundancy situation, and it might cost very little. It might also be an unfair dismissal as a result of TUPE. It might be a lot of other things. And the employee might have 20 years service. This is all guesswork in a vacuum. The company needs to get legal advice.getmore4less wrote: »Even if TUPE applied there is a redundancy situation for the transfered employee.
Worth checking their contract and start date.
Could be zero cost anyway.0 -
In my opinion, TUPE only applies where Company A buys Cleaning Co, there is no suggestion this is the case.
From what the OP has written, this is a business to business dispute about performance of a supply contract.
No way can strangers on the internet give proper advice without sight of the entire contract and knowledge of what dispute resolution has happened to date.Originally Posted by shortcrust
"Contact the Ministry of Fairness....If sufficient evidence of unfairness is discovered you’ll get an apology, a permanent contract with backdated benefits, a ‘Let’s Make it Fair!’ tshirt and mug, and those guilty of unfairness will be sent on a Fairness Awareness course."0 -
In my opinion, TUPE only applies where Company A buys Cleaning Co, there is no suggestion this is the case.
From what the OP has written, this is a business to business dispute about performance of a supply contract.
No way can strangers on the internet give proper advice without sight of the entire contract and knowledge of what dispute resolution has happened to date.
Sorry, but this is incorrect. TUPE also applies where there service change provision.
To quote from this
https://www.cipd.co.uk/Images/7697-a-guide-to-tupe-transfers-web_tcm18-44310.pdf
When does TUPE apply?
TUPE applies in two situations:
1 when a business (or part of one) is transferred to a new employer
2 when a service provision change takes place.
Service provision changes arise where contracts are reassigned. This can be because:
• a contractor takes over activities from a client (known as contracting out or outsourcing)
• a new contractor takes over activities from the old contractor (known as retendering)
• a client takes over activities from a contractor (known as bringing work in-house or
insourcing).
Examples of service provision changes
Common examples of service provision changes include office cleaning,
catering, security and other labour-intensive services.0 -
In my opinion, TUPE only applies where Company A buys Cleaning Co, there is no suggestion this is the case.
This isn't correct. TUPE routinely applies to outsourcing contracts.
For example, if you are a company that outsources your customer service centre to company A, and you then enter into a new contract with company B, all of the staff in that contact centre will transfer to company B. Or if you take the services back in house, all of the staff will transfer to you. That's how outsourcing works - if the staff are wholly or primarily engaged in providing a service to you.
If the cleaner is solely or primarily engaged to clean company A's office, it may well be that the cleaner would transfer under TUPE when that contract is terminated, further analysis would be required.0 -
In my opinion, TUPE only applies where Company A buys Cleaning Co, there is no suggestion this is the case.
From what the OP has written, this is a business to business dispute about performance of a supply contract.
No way can strangers on the internet give proper advice without sight of the entire contract and knowledge of what dispute resolution has happened to date.
Ever heard of secondary TUPE?
Agree entirely with your final sentence, though!Googling on your question might have been both quicker and easier, if you're only after simple facts rather than opinions!0
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