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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47424
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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We are a small Ltd company employing 2 fulltime and one part

Resolved Question:

We are a small Ltd company employing 2 fulltime and one part time professional business advisers. We contract as part of a small delivery consortium to a government department .Our staff are 100percent employed on this contract, the govt dept concerned are saying they will move the contract from our consortium to another provider. Under TUPE we assume the new contractor will have o employ the staff as it is the same contract
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones : Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Will there be any changes to the services provided?
Ben Jones : please note I am in a meeting so there may be a slight delay in responding thanks
Customer:

Hello Ben Thanks will await your reply I am out at a meeting this afternoon sp will check this evening Thank You Roger

Ben Jones :

Hi Roger, before I proceed can you please let me know if there will be any changes to the services that are provided or if they will remain the same?

Customer:

Hello Ben they will remain the same i.e one to one business start up advice and individual client mentoring-Thanks Roger

Ben Jones :

In order to be protected, the first requirement is that the person needs to be an employee, which means self employed workers or agency staff will not be covered. They will then only be protected 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 employer

  • The job description and what the employee is contractually required to do


 


Finally, the business or service that transfers has to continue with the new employer. Therefore, any activities that are currently carried out must continue with the new employer after the transfer. If the business or services changes significantly after the transfer then TUPE protection would not apply. In the case of service changes the service has to be fundamentally and essentially the same before and after the transfer for TUPE to apply.


 


If all of the above criteria are satisfied then it is indeed highly likely that these employees will be covered by TUPE and will transfer to the new employer, who will have a legal obligation to take them on with their existing terms and conditions.

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