Client wants to employ me direct

ThePointIs

I work for a services company and for the last few years I've been pretty well dedicated to one large client

The client now wants to employ me, and a couple of others, directly with better conditions, which on the surface of it is appealing to me for various reasons that aren't all financial

My employer wants to keep us, there are some Restrictive covenants in my employment contract, plus a large bonus coming up we will lose if we resign

- The client wants to agree with my employer that they wave the covenant and are willing to pay them some compensation, plus the possibility of other future work
- If my employer does not agree then the client has hinted they will ask us to resign and apply for the roles, and they say they will indemnify us if the company tries to sue us for losses

Are the two scenarios covered by Tupe automatically by law ?
If the parties agree can Tupe be waived?
What is the best scenario for me and what should I ask the client and my employer ?

Undervalued

ThePointIs said:

I work for a services company and for the last few years I've been pretty well dedicated to one large client

The client now wants to employ me, and a couple of others, directly with better conditions, which on the surface of it is appealing to me for various reasons that aren't all financial

My employer wants to keep us, there are some Restrictive covenants in my employment contract, plus a large bonus coming up we will lose if we resign

- The client wants to agree with my employer that they wave the covenant and are willing to pay them some compensation, plus the possibility of other future work
- If my employer does not agree then the client has hinted they will ask us to resign and apply for the roles, and they say they will indemnify us if the company tries to sue us for losses

Are the two scenarios covered by Tupe automatically by law ?
If the parties agree can Tupe be waived?
What is the best scenario for me and what should I ask the client and my employer ?

Neither of them are. Tupe applies if the company you work for is being taken over, not if you resign and get a new job (even with a former client).

If you go down either route (especially the indemnity one) get some proper legal advice from a specialist employment solicitor. Getting this wrong could be expensive!

Also, if the client / future employer is keen enough on employing you to go to all this trouble, I would ask the solicitor to negotiate some terms to give you some employment protection right from the start. Otherwise, by default in the first two years of a new job you would have next to no protection against dismissal for almost any reason.

ThePointIs

Undervalued said:

ThePointIs said:

Are the two scenarios covered by Tupe automatically by law ?
If the parties agree can Tupe be waived?
What is the best scenario for me and what should I ask the client and my employer ?

Neither of them are. Tupe applies if the company you work for is being taken over, not if you resign and get a new job (even with a former client).

Thanks, but when I looked online it implied that Tupe also covered where a company In-houses a service they were outsourcing. Is this not correct ?

ThePointIs

www.gov.uk transfers-takeovers includes:

• a contract ends and the work is transferred in-house by the former customer
  

but does this still apply if there is no formal agreement between my client and my employer

Brie

ThePointIs said:

Undervalued said:

ThePointIs said:

Are the two scenarios covered by Tupe automatically by law ?
If the parties agree can Tupe be waived?
What is the best scenario for me and what should I ask the client and my employer ?

Neither of them are. Tupe applies if the company you work for is being taken over, not if you resign and get a new job (even with a former client).

Thanks, but when I looked online it implied that Tupe also covered where a company In-houses a service they were outsourcing. Is this not correct ?

My understanding is that TUPE applies when you are pushed rather than pulled.  So if your current employer decides to outsource your work then your role may be TUPEd to another employer.  It doesn't need to be the entire company that's being taken over, just your roles/department.

Whether it's all possible will depend on whether your current employer thinks it's a profitable move.  So to get this to work you'll have to find a way that it is good for them, not you.  (though obviously the reason for doing this is that it is good for you)

Undervalued

ThePointIs said:

Undervalued said:

ThePointIs said:

Are the two scenarios covered by Tupe automatically by law ?
If the parties agree can Tupe be waived?
What is the best scenario for me and what should I ask the client and my employer ?

Neither of them are. Tupe applies if the company you work for is being taken over, not if you resign and get a new job (even with a former client).

Thanks, but when I looked online it implied that Tupe also covered where a company In-houses a service they were outsourcing. Is this not correct ?

Maybe but as I understand you, this is not "outsourcing".

If you were an in house widget maker but the company decided to stop making widgets in house but instead buy them from a widget making firm, that would be outsourcing. If, as part of the deal the outside company agreed to take on the former in-house widget makers then they would be tuped.

You, as I understand it, are considering resigning from the company and going to work for client (not a supplier). I can't see that is tupe situation.

However, as I said, this needs proper professional advice.

(And no, not from ACAS, before their number one fan posts on here and suggests it as the fount of all knowledge)!

Thrugelmir

Your current employer is unlikely to block you leaving. If your future employer makes a formal approach. It's the way of maintaining a relationship between the companies which no doubt extends far beyond just the role you perform. 

Marcon

ThePointIs said:

I work for a services company and for the last few years I've been pretty well dedicated to one large client

The client now wants to employ me, and a couple of others, directly with better conditions, which on the surface of it is appealing to me for various reasons that aren't all financial

My employer wants to keep us, there are some Restrictive covenants in my employment contract, plus a large bonus coming up we will lose if we resign

- The client wants to agree with my employer that they wave the covenant and are willing to pay them some compensation, plus the possibility of other future work
- If my employer does not agree then the client has hinted they will ask us to resign and apply for the roles, and they say they will indemnify us if the company tries to sue us for losses

Are the two scenarios covered by Tupe automatically by law ?
If the parties agree can Tupe be waived?
What is the best scenario for me and what should I ask the client and my employer ?

They would also be party to encouraging you to breach your contract, so could find themselves in the firing line.

TUPE doesn't feature in the scenario you describe.

Jillanddy

Marcon said:

ThePointIs said:

I work for a services company and for the last few years I've been pretty well dedicated to one large client

The client now wants to employ me, and a couple of others, directly with better conditions, which on the surface of it is appealing to me for various reasons that aren't all financial

My employer wants to keep us, there are some Restrictive covenants in my employment contract, plus a large bonus coming up we will lose if we resign

- The client wants to agree with my employer that they wave the covenant and are willing to pay them some compensation, plus the possibility of other future work
- If my employer does not agree then the client has hinted they will ask us to resign and apply for the roles, and they say they will indemnify us if the company tries to sue us for losses

Are the two scenarios covered by Tupe automatically by law ?
If the parties agree can Tupe be waived?
What is the best scenario for me and what should I ask the client and my employer ?

They would also be party to encouraging you to breach your contract, so could find themselves in the firing line.

TUPE doesn't feature in the scenario you describe.

^^^ This ^^^

You need to be very careful here. Your employers client is poaching their staff,  and offering inducements to you to breach your contractual terms.  Your covenant is very likely enforceable against you,  based on the closeness of the relationship. The client is also acting a way that makes them very much liable in law for their own actions AND for yours.  Your current employer decides to sue... you,  your colleagues and their client. The client cuts and runs,  dumping you,  with no employment protection, no job and probably no reference ....

Alternatively, the employer finds out that you are colluding with their client. They sack you. They sue the client - or the client backs off due to the threat. Same result... no job,  no reference. 

I'm sure the client is making and will make you nice promises.  If they were upstanding, honest and transparent,  why are they having this conversation with you and not with your employer? They are willing to pull a fast one on your employer,  and quite possibly in breach of their contract with your employer. What makes you think promises to you are worth more than the ones they made to your employer? 

Stop talking to them about this,  forget everything that they've told you,  and tell them that if they wish to discuss this further then the people to discuss it with are your employers,  because you would never entertain going behind the back of your employer. And preferably put that in writing.  Nicely by all means,  but clearly. Because evidence is something you might want to have. 

Thrugelmir

Jillanddy said:

Marcon said:

ThePointIs said:

I work for a services company and for the last few years I've been pretty well dedicated to one large client

The client now wants to employ me, and a couple of others, directly with better conditions, which on the surface of it is appealing to me for various reasons that aren't all financial

My employer wants to keep us, there are some Restrictive covenants in my employment contract, plus a large bonus coming up we will lose if we resign

- The client wants to agree with my employer that they wave the covenant and are willing to pay them some compensation, plus the possibility of other future work
- If my employer does not agree then the client has hinted they will ask us to resign and apply for the roles, and they say they will indemnify us if the company tries to sue us for losses

Are the two scenarios covered by Tupe automatically by law ?
If the parties agree can Tupe be waived?
What is the best scenario for me and what should I ask the client and my employer ?

They would also be party to encouraging you to breach your contract, so could find themselves in the firing line.

TUPE doesn't feature in the scenario you describe.

I'm sure the client is making and will make you nice promises.  If they were upstanding, honest and transparent,  why are they having this conversation with you and not with your employer? 

Little point if the employee has no interest. Been there myself in the past. Was approached informally. Said would consider. My employer said that the client had approached them. They had no objections and the decision was mine to make. Ultimately the client wanted to bring certain work in house. If I hadn't of accepted the role. Somebody else would have had. 

MalMonroe

It's gratifying to be recognised for your good work but it all seems a bit underhand to me. 

I guess you and your colleagues don't want to approach your employer and have a discussion about the situation? And as Jillanddy says above, "If they were upstanding, honest and transparent, why are they having this conversation with you and not with your employer?"

Are you and your colleagues also prepared to lose out on your big bonuses?

I think that if you felt it was such a great prospect you wouldn't be asking a bunch of strangers on an online forum what they thought.

[PS in spite of the sarcastic comment above, there's nothing wrong with contacting acas (not 'ACAS' anymore) if you want some advice - I know it's a different scenario but they were of invaluable help to me before, during and after a very successful Employment Tribunal a few years ago. Am I that number one fan? Could be! But if you don't like what they say you can ignore it.]