Does Tupe Aply

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proudmary | 18:55 Fri 22nd Mar 2013 | Law
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Hi, a local business was not satisfied with the cleaning service they were getting form a local cleaning company so they ended the contract, contacted another cleaning firm and the new firm agreed a new contract. My husband works for the new firm and has just been told that TUPE applies so his employer,ay have to make him redundant and take on the two staff from the other company who previously did the job. I think the previous company are just trying to frighten my husbands company and that TUPE doesn't apply but am not sure, any advice would be appreciated


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I'm surprised by what I've just read on the Government website but (as I interpret it) TUPE does apply:

"There are 2 types of transfer protected under TUPE regulations:
► business transfers
► service provision changes"

"Service provision changes:
This is when . . . a contract ends and is given to a new contractor"

That doesn't make sense to me. If a company is taking on another employer's staff under TUPE, they do agree to take on those staff under the same terms and conditions as currently apply, but that undertaking doesn't last for ever - the receiving company can change all their employment terms very soon after that. I've been TUPEd several times and nobody in the receiving company has ever lost their job as a result of it - the receiving company might find they are overstaffed and make some redundant in due course, but it doesn't mean (IMO) it's from their existing staff. Surely they'll need more staff anyway if they are taking on a new contract? I would advise your husband just to wait and see - it's not him who's directly affected by TUPE provisions, that's only for the staff moving into the company.
I suggest getting a view from ACAS:
Difficult to give a definitive answer based on a snapshot, but immediate thoughts are:

If NewCo has picked up a new contract which comes with TUPE implications, then the OldCo staff are associated with that contract. You husband's employer is therefore implying that work in TOTAL has dropped off in their company, otherwise they should still have work for him (on existing contracts that don't include the new contract).

As far as I know (and I will check), the 'local business' should have made it clear when offering the work out for contract that TUPE may apply, so this should have been advised as they tendered for the work. To throw this out once the contract has been won, and (even worse) for NewCo to meekly accept this and shove the onus down onto one of their existing staff is pretty poor behaviour. It may even be unlawful.

How long has he worked there?
It seems to be the case it applies here, it looks like a change of service provision.

In general, the next question mr proud's employers should be asking loudly is whether or not an "organised grouping" of workers exists in the old company who were wholly or mainly dedicated to carrying out that contract - although there are other tests too - and how many of them there actually are, it might only be one.

And what happens next should by no means mean automatic redundancy for mr proud - depending on his time employed, he may also be entitled to claim unfair dismissal.

My own employer has dealt with this twice in the last six months on assuming new business.In one case, the outgoing employer initially claimed twelve people were captured by TUPE, when pushed and tested it turned out to be two.

It's a complicated area of law and ACAS won't advise - you (and mr prouds employers) really do need specialist legal advice.

And it's also horrible for the people involved, so I hope it gets resolved for you.

I agree that TUPE (Transfer of Undertakings protection of Employment) probably applies though more information would be helpful. If the two employees of the old company are considered to be an autonomous group permanently assigned to a task and there has been be a change of identity of employer, then TUPE may apply.
You may find Dines v Initial Healthcare services 1995 and Chessman v R Brewer contracts ltd 2001 of interest.
tony, have a look at stobart v moreman and others in the EAT last year
Thank you very much hs, I had thought the appeal you mention had been dismissed as it was found they had not transferred under TUPE not being an organised group of employees, but I shall study the findings with interest.
Surely if the contract was cancelled due to unsatisfactory service it seems a bit daft to me taking on the the incompetant staff of the original company ,

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