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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50181
Experience:  Qualified Employment Solicitor
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For the attention of Ben 05/09/2016 06:19 Ben I have a

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For the attention of Ben Jones05/09/2016 06:19Hi Ben I have a couple more questions.
1. Same thread as above. In addition to the carers that we got transferred to us from another company as part of the TUPE arrangements, we also had the clients whom these carers were looking after transferred over to us. The carers were being paid a certain fee by the previous company which is higher than what we pay our staff. We are having to honour this rate and as such paying the carers at this higher rate. Now the challenge is this. The clients who came over with the carers included clients being paid for by the council (ie the council pays us a certain rate to look after the clients in this case £12.95 an hour) and other clients are privately funded. Some of the privately funded are actually given the money by the council directly and they in turn pay us (so the term privately funded is not entirely private in the true sense). Now these privately funded clients were being charged by the previous company at the rate of £14.95 as opposed to the £12.95 which we will charge our own privately funded clients. We are now about to create invoices for the newly transferred TUPE clients. Should we be charging them the amount that the previous company was charging them or should we charge them the fees that we charge our own current private clients. Considering that this is TUPE and everything remains the same we are inclined to charge them what they were paying before. I just want to make sure we are not doing anything illegal.
2. To date the company with whom we 'blindly' took over the clients and carers from have provided us very little information. We were literally pushed by the council to take these packages on under TUPE arrangements yet the council is not forthcoming in supporting us in any way. For example to date we do not have the Employer Liability information from the donating company. We don't have any information pertaining to what sort of milage the staff were being paid and the full details of outstanding annual leave etc. Infact we have not signed any documentation at all pertaining to a TUPE agreement. Please where do we stand if we want to ask the council to take the clients back as we are really struggling to cope with this transfer. Also some of the staff are threatening to send us to ET even before they receive their first pay, and we have an ET documentation that we have to fill to answer initial questions. Any advise will be very much appreciated. Regards

Hello again, under TUPE, it is only the employees and their contracts of employment that transfer over to you and which you have to honour. There may be ancillary issues related to the transfer such as client contracts, but id these are not part of the employee’s contracts of employment then you do not have to honour them. Other contracts would not transfer to you at the same time and your legal responsibility only stretches as far as honouring the contract of employment of the transferring employees.

In terms of providing you with information, the outgoing employer must obtain employee liability information about the employees and send it to you. However, outgoing service providers may be reluctant to give this information, especially where they have concerns about losing the service contract or are concerned about confidentiality. Regulation 11 of TUPE obliges the transferor to give the employee liability information to the transferee bidder, that is, the potential new employer and only 28 days before the transfer.

If they do not provide the relevant employee information, the new employer can bring a claim in the employment tribunal within three months of the date of the transfer (regulation 12(1)-(2), TUPE).

The tribunal can order that they pay you such amount as the tribunal considers just and equitable, having regard to your loss and any contractually agreed terms between the parties, subject to a minimum of £500 for each employee in respect of whom the information was not provided or was defective (unless the tribunal considers that it would be unjust or inequitable to award this minimum payment).

However, if the criteria for a TUPE transfer were met, then you cannot ask for the employees to be taken back as TUPE is an automatic principle, not a choice.

This is your basic legal position. I have more detailed advice for you in terms of the 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
Customer: replied 1 year ago.
you mentioned that you have s more detailed advise for me?

Sorry that was the incorrect ending inserted there (as you can see I made no reference to what detailed advice it was) but more than happy to answer any further questions if you have any?

Customer: replied 1 year ago.
Holiday pay. So someone is transferred over to us, and we are told they have say 10 days of annual leave left. At the same time it is stated that their annual leave is accrued based on the hours that they work over a certain period of time. Since it is a zero hour contract and we give them jobs as and when there are jobs, how are we expected to honour the holiday pay if there is no guarantee that the hours worked whilst with is will be consistent with the postulated holiday pay?
When I asked how the previous company pays holiday pay this is the answer I got....
'Holiday pay is paid based on a daily average, where a total of the previous 3 pay periods earnings is taken and divided by 60 days to get the daily average.
Staff get 28 days which are to be taken from they start their employment to the following year.'
So they said this and they sent us outstanding amount of holidays for staff even though there is no guarantee that they will work the same hours as they did with the previous company. So should they not work for us for a bit before we can calculate the actual holidays that they will get with us.?

It is not legally required for employees to accrue their holiday entitlement in a holiday year before they are entitled to take it and be paid for it. This only happens in the first year of their employment. At any time after that the employees can take holidays even if they have mot yet accrued the days ff. If they were to leave before they have managed to accrue enough to cover all the holidays they had taken that year, then you are legally allowed to deduct any outstanding amounts from their final pay.

Customer: replied 1 year ago.
Ok thanks for the info.

You are welcome