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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50753
Experience:  Qualified Employment Solicitor
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We are cleaning company and we were asked to organise the

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We are cleaning company and we were asked to organise the cleaning services for an office. When the client tried to give notice, they were told that under TUPE their staff have to come to us with same contract. Even if they organise their service in house, they have to take their staff too.However, they REFUSE to tell the client what kind of contracts their staff have (on data protection grounds…). They may well be… self-employed contractors. In addition, when the client told them they will need probably an early morning henceforth, they say their staff is not available early morning. Finally, their contract is quite simple and saying nothing about tube. See below. Only one point 5 seems to be relevant in any way but still not to TUPE.The client wants to get a safe way out with them (very poor quality). It can be on the ground they cannot do a morning service (?) and/or they do not give them any idea of the contracts they have with their staff (maybe just zero hours or self-employed, as I said) and/or no mention of TUPE in the contract.The client and we seek advice for a safe way our of existing provider.Terms
1 – when service starts; 2: only about; 3. The prices quoted include labour, supervision, cleaning materials and equipment but exclude; 4. Inflationary index
work carried out on bank holidays and VAT.
5. You have the right to terminate this agreement at any time if the work is not satisfactory,
providing that in the event, you give one month's prior written notice for improvement to be
effected and if Westgate Cleaning Services Limited fail to comply with such notice, the
agreement will terminate one week thereafter.
6. All our management and staff will be fully conversant with the safety aspects of this work in
accordance with the guidelines set out in the Health and Safety at Work Act. Our staff will also
be made aware of your own internal safety procedures as you make known to us.
7. On what liability insurance only
8. The labour force supplied by us shall be of reasonable strength to properly carry out the
agreed specification. You shall be given
Customer: replied 18 days ago.
Just to clarify, the current arrangement with the others is for two cleaners who come just for 2.5/3 hours each evening. So, this is not a big contract in this particular office.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Do you know how long the employees have been working there for?

Hello, not sure if you saw my initial query above - Do you know how long the employees have been working there for?

Customer: replied 17 days ago.
Apologies, for the delay. I have emailed the company to ask them if they know. They may NOT know as, from my experience, very often, when cleaners arrive late, they would not know who is exactly coming. So, I will email later today if I have the info. In any instance, either way would be interesting to know either way (with longer and shorter stay). As I wrote, the providers have not given any info on the contract, so we would not know whether the cleaners were employed or sub-contractors or zero hours workers in the first place. Thanks, Ivan

Thank you. First of all TUPE is not a matter of choice or contract – it applies automatically under law if the relevant factors apply. Usually, when there is a service provision change it will apply so that any employees which are assigned to the services which transfer will automatically move to the new service provider, whether it is a new company or the client taking them in house.

If the current employer is refusing to disclose the types of contracts which they currently work under citing data protection issues, then that is complete nonsense – it is completely normal and legal to discuss these issues between the two employers to ensure that the TUPE transfer is dealt with appropriately and to actually work out who will and who won’t be transferring. So they will actually be obstructing the application of the law if they refuse to discuss details of the employees who will potentially transfer.

If it is found that they are employees and you have to take them on, you only have to ensure that you honour their existing contracts. So if they do not have defined hours of work, for example the contract does not mention anything about them not working mornings, that is not a contractual term and they cannot force you to ensure you do not give them any mornings. That in itself is not a reason for them not transferring either.

What you can do now is advise the employer that unless they cooperate with you and help you establish who you are supposed to be taking on under TUPE, you will not be in a position to take anyone on because you have no information about them and in the end their employees will have to potentially make a claim against them if they miss out on a transfer as a result.

I trust this has answered your query. Please take a second to leave a positive rating by selecting 3, 4 or 5 stars above - this is an important part of our process and recognises the time I have spent assisting you. If you still need me to clarify anything else, please reply on here and I will assist as best as I can. Thank you

Customer: replied 17 days ago.
Dear ,
Thank you for your reply. I shall certainly leave best review. I would be grateful if we can have final clarification questions:
1.Is there any way out that can be explored at all not dealing with this at all (on the basis of the fact they cannot provide the service in the morning). For example: the company is told, we have changed circumstances, we need the service in the morning. If you cannot provide it, we cannot use your services. As they stated their cleaners are NOT available for the morning, is this not a valid way out at all.
2. As I understand, if they refuse to disclose their contracts with the cleaners, we say we cannot take any responsibility under tupe and cannot take their workers.
3. What happens if they suddenly put some new people with recently adjusted contracts or have same people with adjusted contracts once they are given a month notice? They shall be asked of course from WHEN are current contracts dated.
4. Finally, if workers are on ZERO hour contracts, this means there are no responsibilities. Is that correct too.
Thanks,
Ivan

SO just to clarify you are the new contractor, who the client wants to take over the cleaning services and these employees are currently employed by the current service provider?

Customer: replied 16 days ago.
I am the new potential contractor. I want to take over. The client wants to get rid of the current contractor no matter whether we step in or not. I am working with the client to sort this out.

Thanks. To answer your questions:

1.Is there any way out that can be explored at all not dealing with this at all (on the basis of the fact they cannot provide the service in the morning). For example: the company is told, we have changed circumstances, we need the service in the morning. If you cannot provide it, we cannot use your services. As they stated their cleaners are NOT available for the morning, is this not a valid way out at all.

It will be difficult to avoid not employing any current employees if they were assigned to clean for the client and even if you are going to be required to clean morning, it does mean you would likely have to use them for other times when they can work. One option you have though is that any employees who have continuous service with the contractor of less than 2 years are not protected against unfair dismissal and as such they can be taken on by you and then dismissed, without them being able to challenge it. So that is a way of trying to remove some of them without any further liabilities.

2. As I understand, if they refuse to disclose their contracts with the cleaners, we say we cannot take any responsibility under tupe and cannot take their workers.

Not quite. TUPE would still apply regardless of whether the contracts have been disclosed or not, so if the employees can show what contracts they have you still have to honour TUPE and take them on if they qualify.

3. What happens if they suddenly put some new people with recently adjusted contracts or have same people with adjusted contracts once they are given a month notice? They shall be asked of course from WHEN are current contracts dated.

Recently changed contracts can still mean that these employees transfer over, as long as they are assigned to that client’s work, there is no minimum timeframe for them to have been employed on the contract for TUPE to cover them

4. Finally, if workers are on ZERO hour contracts, this means there are no responsibilities. Is that correct too.

Yes, they are mot employees in that case, you only have to take over employees, not workers or contractors.

Hop this clarifies?

Hello, I see you have read my response to your query. Could you please let me know if it has answered your original question? You can either reply on here with a quick ‘Yes, thanks’, or select 3, 4 or 5 stars on this page. I can still answer follow up questions if needed to clarify anything for you. Many thanks

Customer: replied 14 days ago.
Thank you. I have the answer.

you are most welcome and all the best

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