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Jenny
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My question is regarding TUPE transfers between two Recruitment

Customer Question

My question is regarding TUPE transfers between two Recruitment Agencies. Recently we have won a new Contract for Labour Supply and have TUPE'd across the outgoing agencies staff. The outgoing agency is now refusing to transfer the Holiday Pay entitlement that has been accrued by the staff to us. Please can you let me know if this is legal ??
Submitted: 2 years ago.
Category: Law
Expert:  Jenny replied 2 years ago.
Customer:

Hello my name is ***** ***** I am happy to help you today Are you saying that they are refusing to pay for holiday taken prior to the transfer date?

JACUSTOMER-wawki7sq- :

Yes the outgoing Agency are refusing to transfer the holiday pay that they have accrued for the workers prior to the transfer.

Customer:

Do you have a written agreement with the Agency at all is your only agreement with the outgoing contractor?

Customer:

Sorry I have just realised that the outgoing contractor is the other agency. Did you have any form of written agreement with them?

JACUSTOMER-wawki7sq- :

We do not have a written agreement regarding the Holiday Pay transfer, however we have been involved in 2 TUPE transfers with this particular Agency before and each time the accrued holiday pay was transferred - so there is a precedent I believe?

Customer:

In the absence of a written agreement the liability for the holiday pay falls on you as their employer. The employees are entitled to be paid for holiday and as all rights and liabilities transfer to you unfortunately you will foot the bill.

Customer:

You can argue that a precedent is set but I am not sure that this would stand up in a court of law if you were to try to sue them for your losses.

Customer:

The fact that the holiday was accrued before they came to you, sadly , makes no difference to the position here.

Customer:

In the future it is important to get warrantees that there are no liabilities in respect of pay or holiday pay before taking on any employees.

Customer:

I am sorry that this was not the answer you were looking for. If you have any further questions 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.

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