tupe help please

[sssammm]

I have a small cleaning company, and have won a contract (small)to clean a small office block, the previous contractor has had his contract terminated due to bad workmanship,
I have now been told that they want to tupe me the existing cleaner, who has no history of workmanship as he was only employed 10 days ago,
my question is, do i have to take him on 1. because he has only been employed a short amount of time, or, 2. because the as the previous company had his contract terminated and mine is a new one

any help would be appreciated

sam

[wino]

Hi sam,

Read this from direct.gov



What happens if you're employed by a contractor?
If you're employed by a contractor (eg in catering or cleaning) who loses a contract to another contractor, you should, unless you'r e told otherwise, turn up for work as usual. You and your contract of employment will usually transfer automatically to the successful contractor.
If you find there's no job for you, you can consider making a claim for unfair dismissal against both employers in an Employment Tribunal. You may also have a claim for failure to consult before a TUPE transfer.

• Unfair dismissal - find out more
• More about resolving a problem at work

It looks like you are going to have to take this person on. See what their contract of employment says about their previous employment. I presume but don't know for sure that after only 10 days employed they would still be on a trial.

[toddle2u]

Sam

There is no TUPE here because you are not taking over the previous Company you are simply taking on a new contract. What had/has happened to the previous Company is of no concern of yours and you certainly don't have to take on this cleaner if you don't want to. The only way that TUPE would come into it is if you had purchased the previous cleaning contractors business.

[sssammm]

Hi thanks for the quick replies, but a bit conflicting, toddle, i like your way of thinking, but can i get some proof or case history anywhere,

regards

sam

[toddle2u]

Sam

Can you confirm if the cleaner was only contracted to work on this particular site or did they work on several sites for the employer. Also what type of entity were they employed by?

[sssammm]

just received this, a copy of the letter sent to the previous contracted company

Dear '''''''
We have also made our own enquiries as has our new contractor regarding employment law. To this end and having spoken with ACAS we believe this to be a very grey area. It would appear that as the new cleaners have only been in situ for just over a week, their rights are limited.
As far as we are concerned, there is no TUPE here as our new contractors are not taking over your Company and are simply taking on a new contract. What had/has happened to the previous Company is of no concern of theirs and we do not have to take on your cleaners if we do not wish to, particularly in view of their performance. Although we have not come back to you, we had to give your new cleaners a chance to settle in but the standard on inspection this week is still not the level required. The only way that TUPE would come into it would be if our new contractor had purchased your business.
Based on the above, we will be making a clean break when our contract with you terminates on 10th July.
Regards xxxxxxx

[Sidewinder]

This letter would appear to be the correct legal position in that the business has terminated the contract for reasons of poor performance. Under those circumstances any argument regarding length of tenure would be irrelevant as the contract is being broken. This would leave the way clear for you to start work and any claim would be against the company employing the previous contractor for breach of contract (if any has occurred) rather than action against both of you for a failure to consult under TUPE. If you do retain the services of a solicitor in connection with the business it may still be worth a legal opinion as the latest version of TUPE contains specific amendments regarding contracted services.

[sssammm]

Dear Sirs,


Re: TUPE xxxxxxxxxxxxxxxxxxxxxx


We are writing to inform you that as from July 14th 2008, we will be the new cleaning contractors at the above property on behalf of xxxxx

Under current TUPE requirements, could you please forward us the following information regarding the 2 employees on the above site.

• Full name, address and contact telephone numbers.
• Date of birth.
• National Insurance number.
• Commencement date of full recognisable service.
• Job title.
• Current contract ie. Permanent, temporary or fixed term.
• Total contracted hours per week.
• Employee start date on this contract.
• Full details of the work these employees will continue
  to carry out under their old contract with you stating the hours, places
  of work and rates of pay.
• Days of work.
• Times of work.
• Rates of pay per hour, with proof.
• Details of any disciplinary action taken against the
  employees who are to be transferred across in the past 2 years. As the

TUPE regulations state that you are to be informed of any disciplinary action taken over the past 2 years.

• Details of any disputes with your employee.
• Details of any outstanding monies owed to your employee.
• Copy of Employees contract of employment.
• Length of their notice, terms and conditions of their holiday including bank holidays and sickness procedure/pay.

If you fail to provide this information you will be
breaching your duty to provide information under the TUPE rogations
which can result in a fine of up to £500 per employee and also a further
claim for compensation if any claims are made by these employees as a
result of not being given the correct information.


I would be most grateful if you could fax the above information to us by 4pm
Friday 4th, or confirmation that the employees do not wish to transfer to our company.

Yours Sincerely



Sent them this letter, as of today i have had no response and i have to start this contract on monday, doesnt leave much time for any consultation,
should i send them a letter saying as i have not had a reply etc etc??

sam