Where do I stand

[marcus1975]

Hi I have recently started a very small cleaning business and have been asked to provide a cleaning service for a company. The company in question already have a cleaning company doing the work for them but arent happy with the service that they are providing so want to get rid of them. There is no contract between the other cleaning company or the dental practice that they do the work for but the cleaning company has a contract with a cleaner that they employ. I have had the dental practice on the phone saying that the man from the other company has said that I have to take the cleaner on and pay her maternity cover even though he has no legally binding contract with the dental practice. Please help as I'm not sure where I stand

 

[Chris Ashdown]

I believe that there must be a contract for tupe to apply, which this does not appear to be the case, but don't take my word as I think tupe law is very complicated

 

[Employment Law Clinic]

Please help as I'm not sure where I stand

As Chris intimates, TUPE can be complicated. The law itself is very simple, but its interpretation, understanding, application, can be complicated.

It's not something you could get a banked answer from on a forum, but from what you've said - that the other dental practice has no contract with the other cleaning company, that there is no undertaking between those parties; I would assume therefore that they just arrange for cleaning as & when they need it, there's no fixed arrangement - you should be ok to take on the contract without taking on the pregnant employee.

If there is a contract - and this doesn't have to be in writing - you could be liable to take on the pregnant employee, if she is assigned to the contract in a distinct role (which could be difficult for the current employer to prove).

Legally, from the minimal information above I suspect you should be ok. However, it would be sensible if you're even contemplating the contract, to get the TUPE terms checked carefully, just in case. And given that there will be a cost of a few hundred to give an opinion (and thousands if this is ever tested), it may simply be a job not worth considering... unless the dental practice suddenly finds they have no cleaner, and needs a new one, in which case you simply step in, offer your services.


Karl Limpert

 

[obscure]

I believe that there must be a contract for tupe to apply, which this does not appear to be the case, but don't take my word as I think tupe law is very complicated

There is a contract. It's just not in writing, but it is demonstrably in existence. The cleaners offered a service in return for money. The Dentists accepted the offer, the service was supplied and money paid. There is a contract.

 

[SteveHa]

I fail to see how TUPE applies in this case. The cleaner works for the other cleaning company. The OP isn't taking over the business of the other cleaning company. Instead, the OP is entering into a separate and distinct contract with the end client, who is also terminating their contract with the other cleaning company.

As far as the (poor) cleaner is concerned, there is no transfer of undertakings. Rather, her employer has lost a contract.

 

[Chris Ashdown]

Agreed there is a contract in that way but the question is there a contract stating a duration of the cleaning i.e one months notice or 3 months etc

Some cleaning companies are very professional in their work contracts others are what you might state as very casual like I will clean your company every friday and that's the total commitment, I know that as we employ one, no written or implied contract nothing signed or on the back of the invoices, nothing, zilch

 

[paulears]

I was thinking the same thing. Why is any old contract anything to do with you? I don't understand Tupe in any way other than general knowledge, but how can one businesses responsibility ne transferred to you without your permission, which you won't give. I'd have thought any dispute would be between you and the client - the two linked by contract.

 

[The Byre]

Unless there is something about the arrangement that the OP hasn't told us, it sounds as if the original cleaning company is trying it on!

 

[STDFR33]

I fail to see how TUPE applies in this case. The cleaner works for the other cleaning company. The OP isn't taking over the business of the other cleaning company. Instead, the OP is entering into a separate and distinct contract with the end client, who is also terminating their contract with the other cleaning company.

As far as the (poor) cleaner is concerned, there is no transfer of undertakings. Rather, her employer has lost a contract.

'Service provision changes'.
https://www.gov.uk/transfers-takeovers/overview

 

[Newchodge]

If there is nothing in writing between the practice and the cleaning company, that doesn't mean there was no contract. If there were a contract, then TUPE may apply under the service provision change. This is a complex area. Do not take on the contract without getting serious legal advice.

 

[Chris Ashdown]

That is the point, for service companies you are expected to take over the workers connected to that contract regardless of buying the company, the silly thing is the change is often sort due to the poor workmanship yet tupe makes them continue with the same workers for service contracts as i understand it

Although I imagine if the contract is cancelled by the company and then a new company employed it may be different as long as there is a gap, Beyond me thats for shure

 

[Newchodge]

That is the point, for service companies you are expected to take over the workers connected to that contract regardless of buying the company, the silly thing is the change is often sort due to the poor workmanship yet tupe makes them continue with the same workers for service contracts as i understand it

Although I imagine if the contract is cancelled by the company and then a new company employed it may be different as long as there is a gap, Beyond me thats for shure

Which is why the client needs to talk to the service provider and complain about poor standards. The contractor needs to deal with poor standards of their staff, and the contract may continue. Failure by the client or the contractor to do this creates major issues that should not be there.

 

[Paul Kelly ICHYB]

I am a bit confused with all of this TUPE talk, based on the OP's comments.

The OP is not taking over the other company. They have won a contract, which has no relationship to the cleaner and previous company.

The dentist is not forcing the OP to use the old cleaner.

Re 'Service provision changes'. https://www.gov.uk/transfers-takeovers/overview - the first sentence: 'When a business changes owner...'

 

[Newchodge]

If the cleaner working on the dental practice was employed solely or primarily to do the dental practice, the service change provisions may apply.

I am surprised that a business advisor does not recognise the potential problem.

 

[Hash and Bash]

... read further on
When TUPE applies
There are 2 types of transfer protected under TUPE regulations:

• business transfers
• service provision changes

 

[Employment Law Clinic]

The OP is not taking over the other company. They have won a contract, which has no relationship to the cleaner and previous company.

The dentist is not forcing the OP to use the old cleaner.

I didn't realise how misunderstood TUPE regulations are.

As has been said by many in this thread, the OP is not taking over the other company, only won (or at least offered) a contract to clean the dentists.

And if the previous contractor had the pregnant employee clearly assigned to that assignment, that undertaking - to clean the surgery - will be transferred from the old cleaning company to the new cleaning company (the OP's). And with it, the pregnant employee's will transfer too. That's what TUPE does - when the service provision (the cleaning contract) is transferred, so too are the staff assigned to it.

There is absolutely nothing to do with taking over companies, but winning & losing contracts does not mean that the staff stay or go with it - they can be transferred, and TUPE makes that necessary.

(The only issues in this thread are is there currently a contract? And if so, is the pregnant employee assigned to any such contract? (And do TUPE really think transferring work to a new company can bypass TUPE so easily as many suggest? ))

Karl Limpert