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?
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?
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
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.
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.
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
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
Ooops sorry obviously posted the wrong response here...I will try again
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:
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.
Sorry my untentional typo it is of course ii, well spotted
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 .
Hi where on the form does it say that please?
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?)
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
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
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
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
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
No, I will still be able to refer to this conversation if needed