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Ben Jones
Ben Jones, UK Lawyer
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I am contracted into a local health trust. They told us over

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I am contracted into a local health trust. They told us over 3 years ago we were being ruled over to them. But with in fighting by two senior managers this has been kept on hold. My employer went into administration shortly after this, we were kept on by the administrator as at the time we were told we would be ruled over. We are still in this position. Does the trust not have an obligation to type us after our employer went out of buisness
Submitted: 11 months ago.
Category: Law
Expert:  Ben Jones replied 11 months ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. Can I just check the set up please - the employer who has gone into administration, had you contracted in to the trust but it is now not willing to take you over?
Customer: replied 11 months ago.
They told us we were to .start on 1st July 2012 but keep putting it off. A clash of personalities in senior management. In November 2012 my employer went into administration, the two of us who were contracted into the trust were kept on by the administrator at the time as we were told we would be moving over to the trust. We have now found out that the trust are not now taking us in house and are in process of tendering the contract. We do not know how we stand in this process, but have been told we should have been types over automatically when our employer went into administration..
Expert:  Ben Jones replied 11 months ago.
ok so you have been employed by the administrators and still being contracted out to the trust?
Customer: replied 11 months ago.
Yes
Expert:  Ben Jones replied 11 months ago.
There is no such thing as automatic TUPE over where an employer has to take you on. TUPE transfers only occur if there is a takeover of a business or there is a change of service provider. In your case you are involved in the provision of services to this employer. You will only transfer under TUPE in one of the following circumstances:· If the services were taken in-house· If the services were contracted out to someone else· If there is a change of service provider In this case there is likely to have been a TUPE transfer when you were taken on by the administrators but as far as the services to the trust continued, you were still contracted in to them and this did not mean you have to be taken on permanently by them. They have the right to keep you as contractors and if they did not want to take you in house they are not obliged to do so. However, if the services are taken over by another contractor you may transfer over to them because there is going to be a change of service provider. This is your basic legal position. I have more detailed advice for you in terms of the laws which decide whether you will transfer over under TUPE, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45306
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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Expert:  Ben Jones replied 11 months ago.
Thank you. In order to be protected under TUPE and move in the event of a service provision change, one has to determine if the person is ‘assigned’ to the organised grouping of employees transferring. As there is no definition of what ‘assigned’ means, whether the employee is assigned is essentially a factual question and needs to be determined by taking into account different factors, such as:{C}· The percentage of time spent working in the service being transferred{C}· The amount of value given to each part by the employer{C}· The job description and what the employee is contractually required to do Finally, the business or service that transfers has to continue with the new service provider. Therefore, any activities that are currently carried out must continue with the new service provider after the transfer. If the business or services changes significantly after the transfer then TUPE protection would not apply. In the case of service changes the service has to be fundamentally and essentially the same before and after the transfer for TUPE to apply. If you can satisfy the abide criteria you can argue that you should be transferred over to any new service provider taking over these services.

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