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Jenny
Jenny, Solicitor
Category: Law
Satisfied Customers: 6390
Experience:  Qualified Solicitor specialising in Employment Law and general legal matters. Please start your question For Jenny Only
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Good morning The company I work for company is about 2 years

Resolved Question:

Good morning
The company I work for company is about 2 years into a 5 year tender. One of the staff TUPE'd over has been on long term sick - not sure if he was already off or went off almost immediately. So far has cost them about £250k.
There is a catch all clause in the contract about they take the work on warts and all. Is that valid or is there any responsibility to inform of issues with staff such as long term sickness or potential for it, or disciplinary before they come over?
If you think that that's not the case, what sort of issues would you raise to trey and at least get some recompense for it, or wouldn't you bother?
Submitted: 3 years ago.
Category: Law
Expert:  Jenny replied 3 years ago.
taratill :

Hello my name is ***** ***** I am happy to help you to day. Are you the employer or just a concerned employee in this scenario?

Customer:

I represent the employer

taratill :

Ok were you involved in the tender process or are you just assisting them now?

Customer:

assisting now - commercial and contractual managers for a building contractor - we can advise on all other aspects of tender, but not this one relating to a sick employee

taratill :

Ok but presumably you were not involved before the start of the contract? Retrospectively this is quite difficult to deal with , although a sick employee, can be dismissed eventually on capability grounds by following a fair procedure.

taratill :

Before starting the contract a due diligence exercise should have been carried out to ask the outgoing contractor specific quesitons about the the employees.

taratill :

The outgoing contractor , if asked these questions, needs to have answered them truthfully. If they lied or concealed facts then the incoming contractor may have a claim of misrepresentation.

taratill :

It will depend on what was asked/ what was said. They do not have a further duty to disclose if not asked questions.

Customer:

ok - so the onus was on our client at that time? I haven't seen the exact wording but I'm led to believe there was a "warts and all" clause that implied that. So if those questions were never asked, then there it's hard or impossible to get it back on the table?

taratill :

It will be very difficult indeed. You need to explore whether there was any misrepresentation either verbally or by written responses to due diligence.

taratill :

In a commercial arrangement such as this the incoming contractor would be expected to make the correct enquiries and there is no come back if they did not and a problem such as this occurs.

taratill :

If you have any further questions about this please do ask. If I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.

taratill :

Hi is there anything else you would like to know about this?

Customer:

so far but perhaps I can write more if I find out anything else relevant?

taratill :

Yes of course, I would be grateful if you would rate my answer now and I will be happy to answer follow on questions as they arise in the future.

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