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SolicitorRM
SolicitorRM, Solicitor
Category: Employment Law
Satisfied Customers: 4193
Experience:  Director and Principal Solicitor. UK
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My company has been providing services to an NHS hospital

Customer Question

My company has been providing services to an NHS hospital and thesexssrrvuces are now to be tendered out. We have used self emoyed staff some of whom now work exclusively for this hospital.
JA: Have you discussed this with your HR staff? Or with a lawyer?
Customer: Are self emoyed staff entitled to Tupe
JA: Is the relevant person an employee, freelancer, consultant or contractor? Does the person belong to a union?
Customer: Not discussed with HR or lawyer. They are freelancers and consultant. They don't belong to a union
JA: Anything else you want the Lawyer to know before I connect you?
Customer: No
Submitted: 12 days ago.
Category: Employment Law
Expert:  michael holly replied 12 days ago.

Good morning

Could you specify your question please

Michael

Customer: replied 12 days ago.
I have a team of doctors and nurses who are free lancers working to deliver my company contract to a NHS hospital. Some of them now work exclusively in this hospital. Are tey entitled to TUPE
Customer: replied 12 days ago.
Good morning Michael
Easier to chat on phone I think and happy to pay
Expert:  TetyanaP-admin replied 12 days ago.
Hello,
It seems the professional has left this conversation. This happens occasionally, and it's usually because the professional thinks that someone else might be a better match for your question. I've been working hard to find a new professional to assist you with your question, but sometimes finding the right professional can take a little longer than expected.
I wonder whether you're OK with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.
Thank you!
Tetyana-moderator
Customer: replied 12 days ago.
Happy to wait. The solicitor needs to be an employment law expert and in particular an expert on TUPE
Expert:  SolicitorRM replied 12 days ago.

Hi thank you for your enquiry and patience. Yes a TUPE situation would have arisen from the time your contract with the NHS ended and they decided to contract others but whilst staff provided to them by you were still working for them. I hope this helps and all the best.

Customer: replied 12 days ago.
if I understand you correctly, even self employed staff working for me will have Tupe rights?
Expert:  SolicitorRM replied 12 days ago.

Hi, what contract do you have with the staff that you supply to the NHS?

In your contract with the NHS is there a clause on TUPE and if so may you copy it and post it here please?

Essentially if they are classified as workers then you would be right to insist on TUPE. if they are genuinely self employed individuals then they would not. But if you can answer the two questions above that would help me to respond to your last question.

Customer: replied 12 days ago.
1. There is no written contract with the staff. I assign work to those who make themselves available and pay them gross. I'm now uncertain whether they would fulfi strict definitions if being self employed for tax purposes.
2. I'll need to look out the original contract which was started 4.5 years ago and meant to have finished 2 yrs, back but has just been rolling on.
Customer: replied 12 days ago.
Some of these staff have been working on fixed days for 4 years
Expert:  SolicitorRM replied 12 days ago.

If they were not on your books as employees and were not supplied to NHS as workers but strictly self-employed individuals, although there is a lot of debate on who is entitled to TUPE with the only guidance at the moment being from the Employment Tribunal in the first instance and not on Appeal, I would say they would not fit the criteria of TUPE. If you find the original contract please feel free to post it and I will review it thoroughly to see if there is a possibility that your staff are covered.

Customer: replied 12 days ago.
Thank you
Will be in touch
Expert:  SolicitorRM replied 11 days ago.

You are welcome