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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50209
Experience:  Qualified Employment Solicitor
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I need some advise on TUPE arrangements can anyone help

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Hi I need some advise on TUPE arrangements can anyone help please.

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Please can you provide some more information so that I can advise you. Thank you

Customer: replied 1 year ago.
I provide domiciliary service to residents in the borough of Haringey. Recently the council gave us some clients from another company through TUPE transfer arrangements. One of the clients that we took on has an 82 year old carer. We have identified that the 82 year old carer is not physically able to provide care to the client and the client has requested the carer to be changed. We have passed this on to the carer and told her she can no longer work with this client. Unfortunately there is no other work to give her at present. She is now stating that she will sue my company for age discrimination. Are we in the wrong

OK thank you, ***** ***** it with me. I am in court today so will prepare my advice during the day and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Thank you.

Hi sorry can you please clarify why she cannot actually provide the care, why is she unsuitable?

Customer: replied 1 year ago.
The client has told us that she is not capable of meeting her needs. For example when the client asks her to go and make her a cup of Tea she goes to the kitchen and forgets to do that chore. She is not able to cream the clients legs because she finds it difficult to bend down. The client has also reported that she dribbled into her food (the clients food) the other day. So basically according to the client the carer is not providing an adequate level of care. Now the carer and the client have been working together for the past 10 years or so. Looking at her staff file from the previous company, there is no documented evidence of and difficulties on the carers part in terms of her work. It appears to me that the client may have haboured some concerns for a while but has just taken the opportunity to voice her concerns out because of the change in company. Below is an email from the social worker advising us to remove the client. Hope this helps.Walsh Katie [mailto***@******.***]
Sent: 29 July 2016 14:59
To: '*****@******.***'
Subject: Mrs EdwardsHI Giftty
I have just spoken to Mrs Edwards and she was emotional. She feels that Dot her carer can no longer manage her needs, she said the final straw was when Dot dribbled in her food.
Mrs Edwards wants this to be handled with care as she does not want to upset Dot.
I feel that Dot needs to be changed as a carer as she is not able to meet Mrs Edwards needs.
Can the carer be changed asap.
Many ThanksKatie Walsh
Social WorkerHaringey Council
8th Floor River Park House*****, Wood Green
London N22 8HQT.(###) ###-####3441

Whilst you cannot just treat someone detrimentally because of their age, and that includes dismissing them, you are able to objectively justify such treatment or even a dismissal. This means that even if age was a factor, it could be justified and not be discriminatory. Whether we like it or not we get old and with age our abilities will deteriorate. That does not mean you cannot remove someone who cannot do their job properly because of old age – there will be a point where you will have to consider the priorities of the work they do, including clients, health and safety, etc.

In fact you used to be able to retire people when they reached a certain age. This was outlawed a few years back but you can still force someone to retire by objectively justifying it. So this is not so much a TUPE query, this is a matter of capability and potential removal due to no longer being able to perform their job or because you perhaps wish to retire them and try to objectively justify that. This would not automatically amount to discrimination and there are ways of trying to get around that.

This is your basic legal position. I have more detailed advice for you in terms of the factors which have been considered acceptable to force an older person to leave, 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 and other Employment Law Specialists are ready to help you

Thank you i will reply later on today

Thanks for your patience. What reasons would qualify as being objectively legitimate will very much depend on the circumstances and will evolve through case law with time, but as an example they could include:

· Workforce planning

· Promoting the recruitment and retention of younger employees

· Contributing to a pleasant workplace and protecting the dignity of older workforce by not requiring them to undergo performance management procedures

· Protecting against incompetence

· Ensuring a high quality of service

· Having an age-balanced workforce, as this can promote the exchange of experience and innovation, and therefore contribute to the quality of the work

· Avoiding adverse impact on pension and benefits, that is, the increased cost of extending such benefits to older workers

So whilst dismissal purely because an employee has reached a certain age is no longer possible, there are still age-related reasons which an employer can use to dismiss an employee, provided they are considered reasonable in the circumstances.

Customer: replied 1 year ago.
Ok thanks for all of the above. But so where do I stand on this matter, can I, for the reasons given above, terminate the employment of this person on the basis that she is not capable of doing what she is employed to do?

Hello it is indeed possible but dismissal should not be the first option you go for. You need to treat that as a last resort so you will be expected to find some other employment she may be able to do. Of course there may be nothing available or she could refuse to do anything offered so eventually a dismissal would be possible on grounds of capability.

Customer: replied 1 year ago.
Ok we are not going for dismissal, we are trying to find her other alternatives but at the moment she is refusing every offer and demanding for a meeting with her previous client who has complained about her. We have declined to arrange the meeting as the client does not want to see her. She is threatening legal action., I hope we are on good grounds

She cannot demand a meeting with them if she does not want to see her, also she cannot be forced to work with her if the client does not want to have her...the client's wishes will take precedence

Customer: replied 1 year ago.
Hi Another question regarding TUBE. Carers have come over with large number of unspent annual leave days. Are we supposed to honour that as well please?

Hi yes I am afraid you are

Customer: replied 1 year ago.
Many thanks, ***** ***** ***** ***** other mater, this is a draft letter I intend to send to the carer whose cleint does not want her anymore, kindly comment and advise if okDororthy Blunsom*****N10 1JE
7/08/16Dear Dororthy
Care Provision for Mrs EdwardsFollowing my recent meeting with you concerning Mrs Edwards, I am confirming our discussions in writing. I explained to you that it has been brought to our attention by Haringey social services and Mrs Edwards herself that you are currently unable to provide the appropriate levels of care required by Mrs Edwards.
In our meeting I raised specific concerns raised by Mrs Edwards, such as your inability to wash her feet, the fact that you are on occasions unable to recall all the tasks that she has asked you to do.
Further, a letter received from social services detailed other concerns raised by Mrs Edwards with specific advise from Social services to change Mrs Edwards carer.
We have therefore come to a point where we have to adhere to the request given by social services and also follow Mrs Edwards request.
Please note that taking this action does not mean that your employment with the company has ceased. We will look for alternate employment for you in line with your current hours. We will contact you shortly as soon we find another client for you to work with.Regards
Gifty AmpofoCare Manager

Unfortunately your question has expired as you must post any follow up queries within 7 days of the date of the original question. Whilst I didn't mind answering a quick follow up query, If you need any further more detailed help on this subject please post it as a new question on our site - you may start it with 'for Ben Jones' so that I get it and deal with it as fast as I can. Many thanks

Customer: replied 1 year ago.
does this mean I have to pay again?

you would do unless you are on some kind of subscription, but I do not deal with membership issues so cannot tell you how a subscription will help you in posting a new question and the charges with that. You can contact customer services if you need to query any aspects of the subscription