While that's all true, Karl, that's quite irrelevant in the case as described by the OP i.e. he's not "contracting for a client where the staff will transfer". He won an independent contract presumably to be executed by his own staff.
I'm still not sure what exactly it is that's bad advice as you seem to be extending the same advice I did. Maybe you could clarify.
Hi Clinton,
To hopefully clarify this, the OP may or may not have won an independent contract, and “presumably to be executed by his own staff” is the crux of the issue.
If the OP won a contract that is an undertaking currently filled by staff (any staff, of any employer), TUPE could (probably would) mean said staff transfer with the undertaking –
Transfer of
Undertakings (from old cleaning company to new cleaning company),
Protection of
Employment (from old cleaning company to new cleaning company).
I’m not extending the same advice as you. To the contrary, I’m challenging the assertions you made throughout this thread – that one contract is independent of another, and the OP is free to bring in his own staff – that’s precisely what TUPE prevents happening. What I am suggesting is that because it could (but we don’t know) be an entirely different undertaking, TUPE may not apply. But that would need scrutiny of the circumstances beyond the practicalities of a forum.
Service industries have a separate rule regarding Tupe which seems very difficult for cleaning firms especially and probably catering firms
Hi Chris,
I don’t follow this post. What do you mean by separate rules?
@TheAccountancyLab, if you're using the Takeover argument, let me address that.
(I'm not a lawyer, nor am I a HR expert, but it still does seem to me that the OP is not liable under TUPE.)
If the previous cleaners were employees of the previous contractor, and spent a significant part of the day on this contract, you may have a point. They would be protected under TUPE when the contract is awarded to a new contractor.
However,
landaulaw says, "For TUPE to apply, there must be a “relevant transfer”. There are complex rules which determine if there is such a transfer, but it is essentially
where there has been a transfer of an economic entity which retains its identity."
The
HRBooth does even better with an example of a cleaning business, which example couldn't be better matched to the case we're discussing here:
The OP states very clearly that the employees (or sub-contractors!) of the previous cleaning company were working on other cleaning jobs during the day and spending just two hours on this contract in the evening.
I insert now the usual disclaimer that the OP should get proper legal advice etc., but it would appear that given the wording in the OP, this poster has a good case that he's not liable under TUPE.
If we now look at the T.U.P.E. guidelines on Her Majesty's website (the amount of rules, guidelines and regulations that, that one little old woman has come up with over the years is truly amazing - she must have a head like an elephant!) is clearly states that Y has to do most or all of his/her cleaning at Company M and in reality, he/she is also cleaning at N, O and P - so T.U.P.E. does not apply.
TUPE rules – the laws – are just about the most succinct piece of employment law there is – they’re very short. But that doesn’t help much, as they’re also very complicated, and guidelines are useless at the best of times (particularly on gov.uk), it’s only the case law that really informs, and I would not rely on gov.uk to interpret TUPE case law.
There is to my mind no relevance to the fact that the cleaners do other work – be that for their current employer, or for anyone else; it’s a distraction.
I'm still not sure what exactly it is that's bad advice as you seem to be extending the same advice I did. Maybe you could clarify.
The fact is, there is an undertaking that particular staff clean a building. If that undertaking is transferred, so too are the staff that can be said to be assigned to it – casual staff, replacements for holidays, etc, wouldn’t be, but if someone does that assignment regularly, they’d be legally deemed “assigned” to the undertaking, and therefore would transfer with the undertaking.
(I don’t agree with HRBooth’s simplistic approach to determining whether TUPE would apply: the cleaners could spend 5% of their time on other clients, or 95% of their time on other clients, or 80% of their time working for another cleaning company – which one would carry an influence? It’s somewhat irrelevant to the actual undertaking that’s being transferred, and whether that in itself is a stand-alone undertaking, with staff assigned to it. Employees can have more than one job, one employer, and to suggest that work could be taken away and therefore they have can spend longer on another site seems stupid (does another client have to increase their cleaning needs because of a transfer?), and completely irrelevant.)
If the staff are overpaid, useless, or insubordinate, tough. The new employer has to manage that better than the old one did, but will know all that due to the Employee Liability Information & other due diligence – they’ll be going into the contract (including accepting the staff) with their eyes open. The task of the new employer is to better manage (or manage out) the staff, and get a better service for a cheaper price.
The first question is: does TUPE apply. The answer is
possibly – although I can see good arguments against it, as the undertaking is not the same. (But Cyndy has helpfully explained how it works, and could very well apply.)
If TUPE applies, the OP would then need to determine if they can manage the bunch of cretins that their client wants rid of better than the old company could.
Karl Limpert
