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Alex J.
Alex J., Solicitor
Category: Law
Satisfied Customers: 3694
Experience:  Solicitors 2 years plus PQE
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I own a small catering business and we have just agreed to

Resolved Question:

I own a small catering business and we have just agreed to take on the catering requirements for an organisation (the masons ) in our area.
The previous company who provided the service employed 2 staff members (specifically to work on the Masons work)on zero hours contracts to provide waiting on services as and when required.
This Company told the Masons that they no longer wished to supply the catering service once they heard that other suppliers were under consideration and said they would no longer supply the service after 3 July.
They then gave their 2 employees written notice of redundancy but have since said that we have an obligation to transfer these employees onto our books under TUPE regulations.
Is this true?
There is no written contract in place between this other Company and The Masons and we do not wish to take these employees onto our books.
I would be grateful to receive your advice on this matter
Submitted: 3 years ago.
Category: Law
Expert:  Alex J. replied 3 years ago.
Hi,

Thank you for your question and welcome.

My name is ***** ***** I will assist you.

It is not for the outgoing supplier to say whether these employees TUPE transfer over to you or not. It is for these employees to make a claim against you if they believe TUPE applies. If these employees spent nearly all their time working on this contract and your company has now won the contract it is possible that TUPE will apply, I cannot say for definite for the following reasons:
1. I would need the exact details of what the exiting service provider did;
2. Also if the employees want to bring a claim it is their prerogative.

What I can tell you is this:
1. If you know there have only been 2 employees you should ask the client to give you an indemnity, as they probably have the benefit of the same from the outgoing service provider; or
2. Find out how long ago the employees were made redundant - if they do not bring a claim within 3 months, then the time on them being able to do so becomes barred.

Unfortunately TUPE on change of service provision is a highly complex area of law and no one will be able to tell you for definite whether it applies or not as it really depends on the facts and on how litigious the outgoing employees are and if the outgoing service provider is malevolent and tells the employees they might have a claim.

The safest way to protect your self is to ask the client to indemnify you.

I look forward to hearing from you.

Kind regards

AJ
Customer: replied 3 years ago.

Hi AJ


Many thanks for your response.


If the employees do decide to claim under TUPE regulations and they win can we simply agree to transfer their employment across or will there be a financial penalty to us or both ?


In any case we will attempt to obtain an idemnity


Regards


Michael

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

You do not have to offer them employment, but potentially if a court finds that they should have transferred over to you then it would be a claim for unfair dismissal.

The other company may face a claim for failing to consult properly. At this stage you need to find out how long ago they were actually made redundant?

Kind regards

AJ
Customer: replied 3 years ago.

Dear AJ


Notified of redundancy about 1 week ago max


Michael

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

They have been made redundant, so there is no obligation on you to hire them now as they have gone, the question is whether they claim for unfair dismissal as a result of this transfer of the services?

Again unfortunately this is entirely their prerogative and is impossible to tell. They may have contracted out of any claims or been paid an enhanced redundancy and have given up any claims. They may just forget about what has gone on for the next two months.

With this many uncertainties the best way to deal with it is see if the client will indemnify you.

Kind regards

AJ

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