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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I would like to ask a TUPE and redundancy question. I have

Customer Question

Hello,
I would like to ask a TUPE and redundancy question. I have worked as a cleaner on a contracted basis for a law firm in Northampton UK for 13 years, with my wife who is the director of the contractor firm.
The law firm has now relocated a couple of miles away and is not taking us on, giving us just 1 month notice. Can you please let us know what is the UK/european law and court cases supporting it that may prove that:
We could/should have been taken on to the new premises
or
been paid redundancy as if we were employed by the contractee.
Best regards
Serge
Submitted: 8 months ago.
Category: Law
Customer: replied 8 months ago.
can you please review the attached file and tell me whether this contract is valid although not signed. The law firm that contracted us says that it is unsigned and downloaded from the internet. So they don't want to pay our 3 month notice but only one month.
Expert:  Ben Jones replied 8 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. So were you working as self employed rather than as an employee?

Customer: replied 8 months ago.
I was an employee of the contractor
Expert:  Ben Jones replied 8 months ago.

ok so they are not renewing the services of the contractor company? What is happening with the cleaning services are they going to be done by someone else?

Customer: replied 8 months ago.
it seems that they are recruiting another company but I don't know for sure. I always can find out if you think it is important.
Expert:  Ben Jones replied 8 months ago.

Hi there, sorry I was offline by the time your last reply had come in last night. This situation is one of a service provision where the contractor company you work for provides a service to the law firm. You are in turn employed by this contractor company and are their employee.

TUPE would only apply if there was a service provision change, which means if the services the company provided were either taken in house by the law firm or a new contractor came in to perform them instead. In these circumstances you can argue that TUPE would apply and all employees which were assigned to the service which transferred would move to the new contractor providing the services. So TUPE would not protect the contractor company as a whole – you cannot rely on it to ensure that the services of the company are retained. TUPE will only protect the individual employees who used to work for the law firm via the contractor, so you for example. What would happen is that you would transfer to the new cleaning contractor and they should take you on as one of their own staff, but the company you used to work for would not be transferring anywhere.

In terms of redundancy, this would not apply here because it is only going to be relevant if your own employer is making you redundant, for example because there is no work for you as a result of this move. You are not employed by the law firm so they are not liable to pay you any redundancy and also they cannot be expected to pay the contractor company redundancy as that only applies to their own employees, which you are not.

Finally, the fact that the contract was not signed does not mean it cannot be legally binding. An acceptance to a contract can be implied through the actions of the parties. So if they knew that there was this contract in place and they were happy to work under its other terms and never challenged them, it is likely that they would have accepted it even if they never signed it. A signature is certainly not a legal requirement for a contract to come into existence and be binding.

This is your basic legal position. I have more detailed advice for you in terms of the steps you can follow to pursue the notice period if they refuse to honour that, 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, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46182
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Law Specialists are ready to help you
Expert:  Ben Jones replied 8 months ago.

Thank you. Whenever a dispute arises over money owed by one party to another, the debtor can be pursued through the civil courts for recovery of the debt. As legal action should always be seen as a last resort, there are certain actions that should be taken initially to try and resolve this matter informally and without having to involve the courts. It is recommended that the process follows these steps:

1. Reminder letter – if no reminders have been sent yet, one should be sent first to allow the debtor to voluntarily pay what is due.

2. Letter before action – if informal reminders have been sent but these have been ignored, the debtor must be sent a formal letter asking them to repay the debt, or at least make arrangements for its repayment, within a specified period of time. A reasonable period to demand a response by would be 10 days. They should be advised that if they fail to do contact you in order to resolve this matter, formal legal proceedings will be commenced to recover the debt. This letter serves as a ‘final warning’ and gives the other side the opportunity to resolve this matter without the need for legal action.

3. Before you consider starting legal action you may wish to consider sending a formal statutory demand. This is a legal request which asks the debtor to pay the outstanding debt within 21 days and failure to do so will allow you to bankrupt the debtor (if they are an individual ) or wind up the company (if they are a business). For the relevant forms to serve a statutory demand see here: https://www.gov.uk/statutory-demands/forms-to-issue-a-statutory-demand

4. If they fail to pay or at least make contact to try and resolve this, formal legal proceedings can be initiated. A claim can be commenced online by going to www.moneyclaim.gov.uk. Once the claim form is completed it will be sent to the debtor and they will have a limited time to defend it. If they are aware legal proceedings have commenced it could also prompt them to reconsider their position and perhaps force them to contact you to try and resolve this.

Whatever correspondence is sent, it is always advisable to keep copies and use recorded delivery so that there is proof of delivery and a paper trail. The court may need to refer to these if it gets that far.

Customer: replied 8 months ago.
Thank you for that. It is not clear whether we would qualify for TUPE when the law firm has moved a few miles away. When I arose the matter with the law firm, their senior employment law partner answered that there was no TUPE in these condition since the law firm was relocating. Can you clarify who is right who is right as I feel from reading your answer that they may be wrong. Would you have a couple of court cases to prove that a relocation does not void the TUPE requirements. In such a case, with these court cases in support of my claim, I can ask the tribunal to get them to release the name of their new cleaners for me to approach them asking for a meeting to sort this out.As for the 2 months notice, do you feel that the contract is valid and defendable by myself alone. When I arose the question of the unpaid notice with the law firm, their lawyer answered that the contract was not signed and it was downloaded from the internet. It does not sound very professional to me, but if you feel that this contract is valid and defendable, then i'll go ahead and start the process that you defined previously.Awaiting your answersBest regards
Serge
Expert:  Ben Jones replied 8 months ago.

TUPE does not automatically apply on relocation, it only applies if there is a service provision change or a transfer of an undertaking such as a sale of a business. Relocation will only be relevant if they move and a new company takes over the services your employer provided, in which case what I mentioned above will apply.

In terms of the notice period, it really does not matter whether the contract was downloaded from the internet or not. Also not signing it is also not a legal requirement. You can have a contract written on a piece of toilet paper and it can be legally binding, the format and signature do not define whether a contract is legally binding. Instead, there must be an offer, an acceptance and consideration. So if you issued them with the contract and on these terms they agreed to have you work for them and never challenged the contents, then it is indeed likely that there would have been an implied acceptance on their part, whether there was a signature or not.

Customer: replied 8 months ago.
Thank you Ben. The second part is clear, I will proceed in asking them to pay for the 2 months. The first part, I am not sure how to tackle it. Do I assume that although the law firm relocated, I still can ask who their new cleaners are and ask for a consultation meeting and possibly reinstatement (our job back). Do you have some court cases on that subject?
Expert:  Ben Jones replied 8 months ago.

Try not to get too bogged down with court cases - each court case is based on unique facts and the key here is the TUPE regulations, which deal with service provision changes as that is what this would be, assuming a new contractor takes over the services

http://www.legislation.gov.uk/uksi/2006/246/regulation/3/made

Customer: replied 8 months ago.
OK, so I can go ahead and ask for a consultation meeting with the new cleaners? Is that what you mean? And what do I answer to the employment lawyer if he persists to say that TUPE does not apply here as the law firm has moved?
Customer: replied 8 months ago.
in this relevant transfer link that you gave me, what particular clause is relevant to me?
Customer: replied 8 months ago.
finally, Ben, who do I contact in term of tribunal if the new cleaners don't want to know and the employment lawyer keeps maintaining that we don't qualify?
Expert:  Ben Jones replied 8 months ago.

Hi there, the first thing to note is that being placed on suspension is not an automatic assumption of guilt and does not amount to disciplinary action. It is there to be used as a precautionary measure whilst an employer investigates any allegations against the employee. Reasons for suspending could be in the case of gross misconduct, breakdown of relationship, risk to an employer's property, their clients or other employees, to preserve evidence or ensure it is not tampered with, avoid potential witnesses being pressured or intimidated, etc.

During the period of suspension the employer should conduct a reasonable investigation into the allegations against the employee. If the investigation gathers enough evidence to justify the taking disciplinary action that could be the next step. In that case the employee has the right to be informed in advance of the allegations against them and be given the opportunity to prepare for the hearing.

On the other hand, if the investigation does not find enough evidence to justify a disciplinary, the employer should terminate the suspension immediately and allow the employee to return to work as normal.

The issue here is that challenging an unfair suspension is only possible by raising an internal grievance and if that does not work – by resigning and claiming constructive dismissal (or if dismissed, by claiming unfair dismissal). However, to be able to claim either you must have at least 2 years’ service, which you do not have. So therefore it is possible to be treated unfairly and be suspended for an unfair reason and even dismissed unfairly in the first 2 years of service. The only protection you would get is if the reasons for this were related to discrimination.

This is your basic legal position. I have more detailed advice for you in terms of the law on discrimination and what you have to show if you were to rely on it here, 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, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Expert:  Ben Jones replied 8 months ago.

Ooops sorry obviously posted the wrong response here...I will try again

Expert:  Ben Jones replied 8 months ago.

yes you can contact the new cleaners to see if they would take yo on under TUPE but you cannot force anyone to do so - they can all reuse and if that happens then the only way is to take this to tribunal. In the section I posted it is 3(b)(i) that is relevant. In terms of taking this further, a new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal.

If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement.

The conciliation procedure and the form to fill in can be found here:

https://ec.acas.org.uk/Submission/SingleClaimantPage

In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits.

Customer: replied 8 months ago.
re: the clause, don't you mean 3B(ii) instead of 3B(i)?
Customer: replied 8 months ago.
5 star rating left as required.
Expert:  Ben Jones replied 8 months ago.

Sorry my untentional typo it is of course ii, well spotted

Customer: replied 8 months ago.
I did what you said but no one answers. What next? Also, as another new topic that I am prepared to pay you for, are you familiar with garages and MOT problems where the repairs cause an almost death situation with brakes not responding? If yes, let me know and I will raise another query but I don't want to lose this particular query on TUPE and breach of contract.
Expert:  Ben Jones replied 8 months ago.

Hi there, yes I can assist with the other query just raise it for my attention and I will deal with it. Going back to this query, if you are getting no answers from the company then you cannot force them to reply or deal with this. Instead your only option then becomes the legal route. In the circumstances I think you should pursue the notice period as per the steps I outlined above via the small claims court and when it comes to the TUPE issues you should contact ACAS to start the early conciliation process .

The conciliation procedure and the form to fill in can be found here:

https://ec.acas.org.uk/Submission/SingleClaimantPage

Customer: replied 8 months ago.
Hello Ben,
The law firm is a business LLP partnership. The form says that I need to make and serve a demand to each partner. Do I understand correctly?
Expert:  Ben Jones replied 8 months ago.

Hi where on the form does it say that please?

Customer: replied 8 months ago.
I don't think this is the right form to download (Statutory demand: debt for liquidated sum payable immediately - form 6.1)
Expert:  Ben Jones replied 8 months ago.

OK so are you enquiring about the Statutory Demand form (wasn't sure what form you were referring to, be it small claims court claim form, early conciliation form, stat demand form?)

Customer: replied 8 months ago.
the statutory demand that you mention in your procedure, I can't see that being the right form on the link you gave me. It asks for each partner to be told in the case of a partnership and this law firm is as probably most law firms in the UK in fact.
Customer: replied 8 months ago.
I believe that in your instructions above, I need to send a statutory demand to the partnership. Do I understand correctly? I will be preparing that as soon as you answer. Would be cool if the both of us, you and me, win this case.
Expert:  Ben Jones replied 8 months ago.

You need to use Form 4.1 (available here: https://www.gov.uk/government/publications/statutory-demand-insolvency-form-41)

The form you used was for normal partnerships, a LLP is treated like a limited company and you use a different form

Customer: replied 8 months ago.
Sorry Ben, I feel this to be the wrong form for some reason. How can I place a statutory demand for insolvency to a law firm?
Customer: replied 8 months ago.
sorry Ben but I don't think this is a correct form. How do I do a statutory demand to a law firm with insolvency? they can afford to pay and the claim is less than £5000 anyway. (I want to claim £2600)
Expert:  Ben Jones replied 8 months ago.

Hi it is the correct form why do you think it is not? This is the form to issue a statutory demand by an individual to a company (be it a limited company or an LLP). Form 6.1 is if you serve the stat demand on an individual

Customer: replied 8 months ago.
Hello Ben, I think it is not the correct form because it has the word insolvency in it which puzzles me. I can't bankrupt them as they are solvent. I'm just claiming 2 month notice and breach of contract if damages are available.
Expert:  Ben Jones replied 8 months ago.

That is the whole point of a statutory demand - you are requiring them to pay you within 21 days otherwise you will petition to make them insolvent as a result of the debt

Customer: replied 8 months ago.
re: Letter before action. Hello Ben, I'm ready to send this to the defendant. The final letter they sent me to stop our cleaning services does not mention that they are giving us one month notice, they just say that we will stop cleaning in one month. Do I claim 3 month notice as per contract or do I consider that the letter is already giving me one month so that I only claim 2 months? And because they breached the contract, am I allowed to damages and if yes, what sort and how much. I would appreciate if you could help me with this final phase of filling up this letter before action (by the way, do you know of a site where I can get a template for this).Also, will I be sending the statutory demand after this letter before action or at the same time or instead of? Let's win together!
Expert:  Ben Jones replied 8 months ago.

The likelihood is that the letter will be treated as termination with month's notice so you will only be able to claim for the difference, which is 2 months. You can claim damages but these are only limited to actual losses suffered as a result of the breach, so unless you can justify and evidence such losses, it would be just the difference in notice period. There should be loads of templates of such a letter online, a quick google search will get lots

Customer: replied 8 months ago.
can You please check before I send. Many thanks Ben.
Customer: replied 8 months ago.
re: your insolvency point above, I can't see how this would work. My understanding is that I can force an insolvency only if I can prove that they are in an insolvent situation i.e. they cannot (are not in a position) to repay their debt (to anyone). This is not the case with the firm of solicitors. So I can't see how this would work.
Expert:  Ben Jones replied 8 months ago.

Hi there, if you wish to continue this conversation please post a new question for my attention, we can only keep a question open for 7 days and it is over that now. Many thanks

Customer: replied 8 months ago.
will you be losing all the info if I open a new conversation to complete this topic? We're almost there but it is hanging in the air without the ends tight.
Expert:  Ben Jones replied 8 months ago.

No, I will still be able to refer to this conversation if needed

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