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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44900
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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We are a national franchised introductory Cleaning Agency that

Customer Question

We are a national franchised introductory Cleaning Agency that finds self-employed cleaners for domestic and small commercial clients. We were approached by a Childrens Nursery to find a suitable cleaner as they were terminating their contract with Dublcheck (a contract cleaning company).
We do not employ any cleaners but Dublcheck do and they have an existing cleaner at the Nursery. Dublcheck say we must transfer this cleaner to our employment under TUPE but we do not employ cleaners so what is the legal position?
Remember, we are not a contract cleaning company - we are an introductory cleaning agency. Any cleaner we supply will be paid directly by the nursery as with all our other clients.
Submitted: 11 months ago.
Category: Law
Expert:  Ben Jones replied 11 months ago.
Hello, my name is***** am a qualified solicitor and it is my pleasure to assist you with your question today.can you tell me how long this person has been employed at the nursery please.
Customer: replied 11 months ago.
So, the cleaner is employed by Dublecheck and has been working at the nursery for just under 12 months
Expert:  Ben Jones replied 11 months 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 delays.
Expert:  Ben Jones replied 11 months ago.
Many thanks for your patience. There are a couple of factors which will assist you in trying to counter any arguments that this is a TUPE transfer.
First of all if the cleaner is genuinely self employed, they will not be covered by TUPE. The rights under TUPE only apply to employees, not the self employed, so if they are not an employee then there will be no TUPE protection.
Secondly, as you have correctly identified, you are not going to be the one employing the cleaner. TUPE only applies if there is a change of service provider and that includes the following:
• The existing services are being changed over to a new provider. So if Dublcheck had their contract terminated and a new company employing cleaners came in their place, the cleaner would be transferred to that new company. This is not your position as you are not a service provider, you are just an introductory third party, an agent so to speak.
• The service comes in house, so if the nursery decided to employ its own cleaners directly and not use the services of the company which provided the cleaners before – they will then have to employ the cleaner directly
Finally, even if the cleaner is an employee and they transfer over to the new employer, if their continuous service with their employer is for less than 2 years they can be dismissed as soon as any transfer occurs. That is because they are not protected against unfair dismissal. So even if they argue that you should employ this person and take them over, you could give them immediate notice of dismissal to stop any such transfer taking place. However, that is only possible if they have 2 years’ service or less.
I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. 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
Expert:  Ben Jones replied 11 months ago.
Hello, I see you have read my response 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? If your query has been dealt with please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. If you need further help please get back to me on here and I will assist as best as I can. Thank you.

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