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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48798
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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This is a question regarding TUPE regulations. We are a security

Resolved Question:

This is a question regarding TUPE regulations. We are a security company providing security guards to a client we have a contract with. The client wants to directly employ two members of our staff to carry out the same duties we are currently providing, thus reducing our contracted hours.
Our employees have a non-solicitation clause in their employment contract which refrains them from accepting offers of employment from clients they are working for, on our behalf.
The clients contract also has a similar clause with a monetary penalty should they offer our employees direct employment. They are now aware of this, but have stated; "what's stopping us terminating your contract, bringing in another security provider and under TUPE transferring your staff over, but under the agreement with the new provider employing the two guards, we want, direct?".
My question; Does the TUPE regulations allow for employees to be transfered, not to the incoming provider, but to the client direct? And is the client right in that he can overcome his contract obligations in this way? Surely this can't be right?
I would very much appreciate if you could look into the point of law in this case. Thank you.
Regards
Kevin
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How would your business be affected if they were to employ these people, would you lose out on fees that you get for providing their services?
Customer: replied 2 years ago.

Yes, we would lose approx 100 hours a week

Expert:  Ben Jones replied 2 years ago.
Thank you for your response. I will review the relevant information and will get back to you as soon as possible. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you
Expert:  Ben Jones replied 2 years ago.
Thanks for your patience. If a genuine TUPE situation occurs, where the employer is taken the services in house or changing service providers and the employees would transfer over to them, then legislation will take precedence over contract. This means that if TUPE applies, the rights under TUPE would take precedence over any contractual restrictions that may be in place. So if the employees would have automatically transferred over to the employer under TUPE, any restrictions prohibiting them from working for that employer would not take precedence.
However, what the other company is trying to do here is not to take the employees under TUPE, but to change contractors and let them transfer over to the new contractor under TUPE then employ them directly from that contractor. Whilst the initial transfer to the contractor would be covered under TUPE and you won’t be able to prevent them being employed by the incoming contractor, if they then want to be employed directly by your client, then the restrictions would still be able to apply as long as this subsequent move is not covered by TUPE itself. So it really depends on how they go about this second transfer to employ them directly from the contractor – are they going to bring in the services in-house and then create a new TUPE transfer where the employees just move from the contractor to them, or is it something different where TUPE does not apply in which case the contractual restrictions would still likely take precedence.
So in summary it really depends what the nature of the transfer to this client is – if it is one covered by TUPE then TUPE, as the law, will take precedence and the contractual restrictions would rank behind any TUPE rights. However, if there was no TUPE transfer, then you could still rely on these restrictions to apply them as necessary.
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
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