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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44962
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I am a small cleaning company and we have taken on a contract

Customer Question

I am a small cleaning company and we have taken on a contract for cleaning at a small garden centre. All of our cleaners are self employed and we do not employ any cleaning staff.
However the cleaners at the gardencentre who are employed by the previous contractor believe they should be kept on by us and be transferred over to us on their conditions of employment
We have no objection to them applying to work with us but on a self employed basis
Is this correct or would we be breaking the law?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.
Hello and thank you for your question, which I will be happy to assist you with. Please let me know if once you take over anything will change from the services that are currently being provided?
Customer: replied 3 years ago.

for ben jones only


the services will change in that there is a reduction of hours for cleaning

Expert:  Ben Jones replied 3 years ago.
There is a piece of legislation known as TUPE which exists to protect employees' rights if the business in which they are employed changes hands. This could be because of a sale of the business, or because a new contractor takes over the services provided by their current employer. Examples include:
• Simple sale of a business where the owner changes; or
• Change of contractors - where the services move across from one contractor to another

Your situation falls within the second scenario where you are taking over the provision of services. The services will remain the same and the change of hours will be irrelevant. Therefore, it is highly likely that TUPE will apply and you will have a legal obligation to take on all employees who are assigned to the undertaking that is transferring.

In order to be protected, the first requirement is that the person needs to be an employee, which means self employed workers, agency staff or volunteers will not be covered. They will then only be covered if they are permanently employed in the business (or part of it) that is being transferred.

Next, one has to determine if the person is ‘assigned’ to the organised grouping of employees transferring. As there is no definition of what ‘assigned’ means, whether the employee is assigned is essentially a factual question and needs to be determined by taking into account different factors, such as:
• The percentage of time spent working in the business being transferred
• The amount of value given to each part by the employee
• The job description and what the employee is contractually required to do

You cannot really avoid these obligations and will have no choice as to who you have to take on - as long as the employees were assigned to the contract you are taking on then they will automatically transfer to you and you have a duty to retain their employment on their existing terms and conditions.

Please take a second to leave a positive rating as that is a very important part of our process. Your question will not close and I can continue providing further advice if necessary. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44962
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 3 years ago.


for ben jones only


 


when you say the employee - does this mean they are employed by the garden centre or by the previous contractor and does this make a difference

Expert:  Ben Jones replied 3 years ago.
it would be the cleaners employed by the outgoing contractor

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