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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50191
Experience:  Qualified Employment Solicitor
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We are a grounds maintenance company (micro entity 5 employees),

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We are a grounds maintenance company (micro entity 5 employees), we are looking to Tender for a new contract with a Local Authority. The contract is for Urban grass cutting services which is broken up into 7 lots, Tenderers can bid for one, multiple or all seven lots. If we you were to win all of the contracts the work would only amount to around 4 -5 months work for two people (you wouldn't be able to do it with one person for health and safety reasons). The contract is a fairly open one as you are bidding for a variable quantity of cuts (3-5) which is dependant on growth factors etc.
We intend to bid for 3 of these lots. On the tender documentation it states that TUPE may apply and the bidders should seek legal advice. We have asked the question to the local authority regarding who the incumbent contractor is, so that we can clarify whether or not it does apply.
The local authority have responded by saying that they have been advised by the current contractor that TUPE does not apply. The local authority have then followed this by reminding us that it is our responsibility to seek professional advice on this matter.
My question is where do we stand on if we bid for these contracts are then successful and are then informed that TUPE does apply ??
I'm my opinion I cant see how it can apply as currently it is all to one contractor, so splitting it up would mean that it would become too fragmented too apply TUPE. Also it would be difficult for the contractor to "group" employees on to this contract due to the way it would be spread (cut frequency can vary from only 3 - 5 cuts per year)
Hello do you know if there are specific people employed to do the jobs you are bidding on?
Customer: replied 2 years ago.
The local authority have said that they do not and have not employed anyone to fulfil any part of this contract. With regards ***** ***** current contractor I do not know, but I can not see how anyone can be employed directly as there is not sufficient work.I have asked who the contractor is, but the local authority will not tell us , they have asked the contractor directly and advised us that TUPE doesn't not apply, but to cover their backs they also advise legal adviceI hope this helps
Thank you. TUPE is certainly not an easy piece of legislation and the fewer details one has about the current circumstances the more complex it may be to work out if would apply or not. In general, TUPE 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 In order to be protected, the first requirement is that the person needs to be an employee, which means self employed workers or agency staff will not be covered. They will then only be protected if they are permanently employed in the business (or part of it) that is being transferred. Next, 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 business 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 employer. Therefore, any activities that are currently carried out must continue with the new employer 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. So you would need to get further details from the other parties to determine what the current employees are doing and to work out if it could be argued that some of them are assigned to the organised grouping of employees which will; transfer to you. You will particularly want to find out if there are employees who were specifically assigned to undertake the part of the work you are hoping to take over. 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
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