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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44924
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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We are a small company and are trying to change cleaning

Customer Question

Hi
We are a small company and are trying to change cleaning companies from G to D.
In 2011 we took on J, a small family run business to do our office cleaning. I never signed a contract other than one I had drawn up which was an NDA. In Sept/Oct last year (2014) J sold her business to G but remained as supervisor. We have never signed any contract with G. Despite being unhappy about the sell out I decided to continue with them and see how things progressed. Since the they have had several changes of staff and supervisor so I have decided that enough is enough and told them I wished to terminate. They are now saying that the cleaner they have been sending to me on a twice weekly basis need to become an employee of D or us under TUPE. Does this stand is there is no contract and given that this particular employee has only been cleaning our offices for 6 weeks?
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long has that employee been employed by G?
Customer: replied 1 year ago.

I am not sure, I believe less than two months, as there was a period of time they were unable to clean because they could not get anyone and that was about 6 weeks ago. I have just asked for clarification on this.

Customer: replied 1 year ago.

HI Ben, I have just had it confirmed that he started on the 6th May 2015 and as well as our site does relief cleaning

Expert:  Ben Jones replied 1 year ago.
The fact that there were no contracts signed between you and the companies in question would not really change anything. An implied contract would still exist by law even if nothing was provided or signed in writing. The key is whether the employee in question would be protected under TUPE.
TUPE is a piece of legislation which exists to protect employees' rights if their employment changes hands. This could be because of a sale of the business, or because a new contractor takes over the services provided by their current employer. Examples include:
• Simple sale of a business where the owner changes (excludes a share sale of the business)
• Contracting out of a specific service, where the employer engages a contractor to carry out specific activities they have carried out up to now (the opposite, contracting in, would also be covered)
• Change of contractors - where the services move across from one contractor to another
So if they were employed by the contractor that provided the cleaning services to your business and assigned to cleanings your premises they are likely to be covered. This means that they would automatically transfer either to you, if you were taking the claiming services ‘in house’, or to the new contractor that would take over the cleaning.
However, there are some potential good news as their rights would depend on how long they have worked for that employer. If they have less than 2 years’ service with them they would not be protected against unfair dismissal, which means they could be dismissed for more or less any reason. So even if you or a new contractor had to take this employee on, you could dismiss them as soon as that happens. All you would need to do is provide them with their contractual notice period, or in the absence of such – with a week’s notice. So obtain clarification on how long they have been employed by that employer (including any continuous service under TUPE from previous transfers) and if it is less than 2 years, you can terminate their employment quite easily even if they transfer over.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Customer: replied 1 year ago.

He was employed on the 6th May 2015. It looks like we have no choice other than to stick with the current cleaning company. If I ask for the current cleaner to be replaced with someone else is there anyway I can ask for someone who has opted out of TUPE? Is that possible?

Expert:  Ben Jones replied 1 year ago.
you do not have to stick with the current cleaning company - you can change if you wanted to. But you would have to allow this cleaner to move to the new contractor that would provide the cleaning services. They can then dismiss them as soon as they take over the contract.
You can certainly ask the current company to provide a new cleaner and state that if that cannot happen then you would be looking to replace them with a new cleaning provider. If they supply you with a new cleaner then you cannot get someone who has opted out of TUPE - that cannot happen, the protection under TUPE is automatic. When someone opts out of TUPE it means that they do not want to move to a new employer under TUPE, so if this cleaner had opted out then they would not move to the new employer if one takes over. But you cannot force them to do that. The easiest way is still to allow them to transfer then just dismiss them as they do not have the required length of service to be protected against that.
If your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
Customer: replied 1 year ago.

Hi Ben

Apologies for emailing you again but there has been an interesting twist! Last night the new supervisor came to visit and introduce himself and was appalled by the standard or cleaning.

He has gone back to his boss and I followed it up with an email today and I have now been told that the cleaner will no longer be coming to our premises and that they will be looking for a new one!

Can I extract us from this contract now?

Expert:  Ben Jones replied 1 year ago.
Hi, so you mean that you wish to terminate the services of the company in general and replace them with a new cleaning contractor still?
Customer: replied 1 year ago.

Hi

Yes, I suggested that we go our separate ways yesterday as I did not want a replacement found for this guy to which I received a reply stating my comments had been noted in light of my companies constructive breach of Tupe and she will return our keys to us. Is there such a thing?

Expert:  Ben Jones replied 1 year ago.
Not really but there is nothing stopping you from terminating the services of this company. You are not bound to them forever. Even in the absence of a contract you can still terminate them whenever you want. You would expect to give them some notice for this, perhaps a notice period you would have usually given a company in the circumstances, say a week or a month. Also as mentioned even if they try and force this person to transfer to you or the new contractor under TUPE they can be dismissed immediately with just a week's notice.
If your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
Customer: replied 1 year ago.

I am not sure what has actually happened to this guy, whether she has sacked him or whether she has moved him to another site. We also discovered during the last couple of days that he had been responsible for two serious security breaches to the building so my MD did say he could not be allowed back in which. I'm not sure if she's trying to frighten us by saying we somehow constructed this to avoid Tupe? even though her own supervisor told her this guys work was unacceptable. I suppose what I'm frightened of is legal come back, I don't think there could be any from them but maybe from the cleaner himself?

Expert:  Ben Jones replied 1 year ago.
No there won't be any legal comeback from either I have covered the situation with your rights and you can terminate both the company and the cleaner if necessary
Expert:  Ben Jones replied 1 year ago.
Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether you need further help or if I can close the question? Thank you
Expert:  Ben Jones replied 1 year ago.
Hello do you need any further assistance with your query please or has your question been answered?

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