Tupe

Discussion in 'Jobs (Discussion)' started by Juan_Ramirez_III, Aug 13, 2010.

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  1. Whats the score with this ******* minefield?

    For example, if you bag the job to REPLACE an existing contractor providing a soft facilities service on multiple and regional sites what are your obligations to the LOCALLY employed staff that are already in place?

    How does the existing service providers obligation to THEIR staff affect the replacement firm?

    If anyone can throw in the variables, expose any potential pitfalls or throw in some experience of this, by PM or open discussion then much appreciated and ill send you a kiss in an envelope.
     
  2. Auld-Yin

    Auld-Yin LE Reviewer Book Reviewer Reviews Editor

    That is a huge minefield JR3, but basically staff tupe'd over shouldn't be worse off. Now their T&Cs can change by negotiation etc but you have to be really careful. Get serious HR advice from someone who knows employment law or it could cost, big time. Arrse is not the place for this, proper HR advice is needed.

    Strangely, if you were an employee in this situation and in a union, you would have access to about the best advice in the country. This is something unions ensure they are well up on at all times.
     
  3. Ta very much.

    Do I have to take people on as a matter of course? The reason for change in service provider is a performance issue, why would I take on deficient wobble heads just to go through the process of micro managing them out of a job anyway?
     
  4. Auld-Yin

    Auld-Yin LE Reviewer Book Reviewer Reviews Editor

    As I said, get some professional advice asap.

    I would have thought that one of the main reasons for retaining staff is it saves on recruitment which can be time consuming and expensive. Remember the fault may have been through bad management, not necessarily bad staff.
     
  5. Speaking as an individual who has recenbtly represented five little cleaning ladies and obtained for each of them thirteen weeks wages at the expense of a major local authority who were arrogant enough to believe that those ladies were too thick to enforce their rights under TUPE, I can assure you of two things. Firstly, there is nothing too difficult about the 2006 Regulations which fundamentally alter the law relating to service provision transfers under Regulation 3(1)(b) which was a grey area under the old 1981 regulations. Secondly, you will find it extrememly expensive if you forget for a single moment the reason for the existence of the 2006 Regulations. They do not exist and never have existed for the benefit of an employer. They exist for the sole purpose of the protecting the rights of those employees who are affected by transfer. When you assume the contract, you assume not only the pre-existing rights of those employees, you also assume the pre-existing liabilities of their employers under Regulation 4(2). Thus, for example, unless the old employer has complied fully the information and consultation exercise required by Regulation 13 or has failed in his duties to you under regulation 11, then it is you, who is sued by the affected employees, and not the former employer although it may surprise you to know that you are entitled to a minimum of £500 per affected employee by suing the former employer under Regulation 12(5) . It is surprising just how many small businesses fail to check that the transferee has failed to comply and then have no idea that the whole policy of the law is to allow the winning contractor the right to punish the trasferring employer as of right for his failure to safeguard his employees welfare before he disposes of his obligations to them. Thousands of Pounds by way of virtual gift are potentially lost in this way. So I suggest that before you even contemplate unilaterally changing the terms and conditions of your inherited employees and having your fingers badly burned for even thinking about it, I suggest you get hold of at least a copy of Blackstone's Guide on the subject and make bloody sure you know what you are doing before you meet people like me on an employment tribunal who will be more than happy to take your money off you and hand it to the employees you appear to want to dispose of!
     
    • Informative Informative x 1
  6. mysteron

    mysteron LE Book Reviewer

    TUPE is a nightmare. Government will be outsourcing swathes of the bloated CS like its going out of fashion over the next 2 years.

    If the role is required after contract award (and therefore TUPE) - then they come with the role is the rule of thumb.

    It means that their T&Cs are locked down by the unions and the contractors have to retain as long as there is a requirement for the role - unless of course they choose to leave. But you can't change their ToRs, etc - it is a minefield, micro managing these sort of people is hellish but necessary. We have one that will not leave their desk even though even one else has ToRs that demand a minimum of 25% local area travel, they will be in their place of employment for exactly 7 hours and 30 mins (notice I did not mention work - there is a message there) and not do a minute more. Quick to reference T&Cs, etc.

    The painful thing is that their T&Cs means that standard expected of them is so low that it is impossible to get them on inefficiency or performance. They are dug in and defensive on their position with Stage 3 and reinforced OHP. We will have to fundamentally change the organisation and still offer them a role to even have a hope to getting shot of their useless, oxygen thieving carcass.

    Beware of the TUPE - get loads of HR advice and make sure your shoite is in one sock when this is thrust upon you.

    Good Luck.
     
  7. I have managed 3 TUPE takeovers of staff, and can only back up what Iolis and Auld-Yin have advised earlier. It is an undertaking that ensures that existing staff are not disadvantaged by the takeover by new management. Its a real HR nightmare, although once you are used to the rulings and the environment is still workable, and I managed to get good response from my staff, even persuading them over to new company contracts through negotiation, but its a carrot approach all the time, no sticks allowed. Seriously take advice from HR or experts in the field of TUPE, there are a few around.
     
  8. I am currently awaiting a response from the European Commission to a report I submitted to them some months ago relating to proposed amendments to the made to the WorkingTime Directive which you will be aware, TUPE 2006 transposes into United Kingdom Law in light of some of the ways in which employers have sought to circumvent the regulations. One favourite trick used by some local authorities hiving off some of the commercial elements to the private sector is to utilise the redeployment clauses in their employees employment contracts to move unsatisfactory or expensive employees to areas and sites which are to be tendered to the private sector. During ther bidding process, the candidate will have little idea of the terms and conditions the workforce are operating under until he has won the bid and then finds to his horror when he receives the employee information which the transferror is required to supply him with under Regulation 11(1) that he has, for example, inherited cleaners, drivers, care assistants and others a high percentage of whom have been transferred into post during the previous six months many of whom have appalling disciplinary records, poor work attendance and of those who are 'clean' he will find, as with all of them, they enjoy extremely generous holiday entitlements, well beyond that enjoyed in the private sector. I have suggested that the information must be made available at the tendering stage to all prospective bidders. Unless and until that happens you need to ensure that your Contracts Manager is 'on the ball' especially when dealing with local authorities who will do their level best to make a tender as attractive as possible by concealling the true nature of the costs of running the undertaking. Another loophole that needs closing is the provision relating to 'third party pressure' which allows a collusive action to destroy the employment rights of expensive tranferred staff by manipulating the case law interpreting the ERA. Although you have been rightly advised to seek HR advice, you will need to be extremely wary. I have come across many HR departments whose knowledge is extremely poor. If you have an HR department you need to ensure that they are fully trained since their whole purpose is to keep you out of court, not land you there in the first place. Local Authority HR and legal departments are notoriously low grade in this regard and still use the 'tricks 'n' traps' which have long been compromised and closed down by the EAT and Court of Appeal.
     
  9. Iolis, it's been a while since I've had anything to do with this subject. Is it still true (or was it ever), that a company taking on staff through Tupe, only have to honour this for a time that is not set in stone? By this, I mean that there is nothing stopping the new company from changing any of the T&C's of the cross-over staff, say 6 months down the line, as they have honoured - legally, the Tupe conditions?

    Like I said, it's been a while and am more than likely barking, not only up the wrong tree, bit in completely the wrong forest!
     
  10. TUPE'd the cleaning staff at a secondary school. There then followed two years of round and round the garden with the staff, most of whom were crap but all of whom knew more about their "rights" than probably even Iolis!

    It is a veritable minefield and strangly enough no the previous incumbent didn't brief their staff properly but also we didn't get the good advice that Iolis has just offered - so that was £9k we could have had...
     
  11. I believe that it is 5 years (someone better qualified can correct me if necessary) unless the employee transfers or is promoted within the new organisation. In my line of work TUPE is a regular thing although I have never as yet gone through it.
     
  12. There has always been a tension between, on the one hand, the underlying principle that the acquired rights of an employee should not be detrimentally affected by a transfer to a new employer, and on the other hand, the desire of the new employer to achieve a uniformity in the way in which his company pays and administers its employees. The latter may be particularly problematic where, for example a cleaning company gradually acquires small and medium size contracts over numerous sites and locations and is faced with upwards of hundreds of employees most of whom are on different rates of pay, have different holiday entitlements and so on. The 2006 Regulations recognise and seek to give effect to the latter while preserving the underlying protection required of the former.

    When the individual transfers, the effect of Regulation 4(1) and 4(2) of TUPE 2006 operate to preserve his contract of employment intact. Regulation 4(4) operates to render void ab initio any purported variation of his contract if the sole reason for its variation or the main or dominant reason for the variation is either the transfer itself, or a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes in the workforce (an ETOR). The effect of this provision is to negative any consent that the employee might give, either expressly or by conduct to any changes in those terms in connection with the transfer in question, or that is for a reason unconnected with an ETOR reason. The mere fact that a new transferee employer wishes for good reason, to harmonise his terms of service to bring his newly acquired employees into line with his existing workforce, is not a permitted ETOR reason, and even if the reason is either technical, or it is organisational or both, either or both are ineffective if it does not also entail a change in the workforce . The burden of proof is on the employer to satisfy the court that (a) the amendment is valid in general contractual terms (ie, it is not illegal unfair or otherwise void on public policy grounds) and (b) that the change is, in substance, rather than form, a valid ETOR. Thus distancing the changes in terms and conditions from any connection with the transfer can be quite difficult for an employer to achieve.

    Turning now to the substantive part of your question. Is there a period of time, say, six months down the line when the employer can change the terms and conditions since he actually honoured TUPE initially, six or so months before?

    The answer to that question is a resounding ‘no! Many employers make the fatal mistake of thinking that because the limitation period between the accrual of a right in action and the lodging of an ET1 at an employment tribunal is three months, that all they have to do is sit out the period and impose a unilateral contractual variation on expiry of the limitation period.

    There is no time limit upon the period during which a dismissal, actual or constructive, can be deemed to be transfer-related and therefore automatically (and rather expensively) unfair even if it occurs some time after the TUPE transfer since the crucial question is whether the sole or principle reason for dismissal, actual or constructive is one which is ‘connected’ to the transfer. In other words it is not the efluxion of time which is a factor, it is the nexus between the transfer and the dismissal, actual or constructive. I am grateful to all of those employers who provide me with the money for a new car every two years who think otherwise!


    A case which illustrates the point is that of Taylor v Connex South Eastern Ltd EAT/1243/99 in which Mr Taylor was dismissed two years after a relevant transfer for refusing to accept a new contract which altered his contractual, holiday and redundancy entitlement which he had previously enjoyed with his previous employer. That the majority of the staff who transferred with Mr Taylor had decided to accept these new terms was held to be of no relevance since the reasonableness or otherwise of either party’s position is irrelevant to the process of identifying the causative reason for the dismissal. In Mr Taylor’s case the Employment Tribunal legitimately found the reason for his dismissal to have been the transfer without which the relevant changes would not have been demanded.

    Does this mean that a transferee employer can never achieve contractual harmonisation through a mutually agreed variation of contract with his newly-acquired staff?

    Of course not!

    Regulation 4(5) TUPE 2006 expressly provides that nothing prevents an employer and an employee from agreeing a variation. What separates a voluntary and mutually enforceable variation under Regulation 4(5) and a purported variation the agreement to which is automatically void under Regulation 4(4) is that under Regulation 4(5) is that the variation must be for an ETOR reason and must be totally unconnected with the transfer.

    Both Regulation 4(4) and 4(5) are subject to Regulation 4(9), this, provides that where the transfer would involve a substantial (ie, more than simply minor or inconvenient) change in working conditions to the material detriment to the transfer of the employee under Regulation 4(1), he may treat the contract of employment as terminated and he may be regarded as having been dismissed which, under Regulation 7(1) allows him recourse to the automatic unfair dismissal provisions at Part X of the Employment Rights Act 1996. One good reason therefore why the contracts manager needs to ensure that the transferring employer whose employees you are about to inherit complies with the notification and employee information requirements under Regulation 11 is that unless he does so, you are likely to inherit a large number of shell-shocked employees on a Monday morning who were informed of the transfer by text on the Friday and because you have inherited not only the rights of the former employer, you have also picked up his liabilities by virtue of Regulation 4(2), Not only are you going to be sued by those disgruntled employees for a maximum of thirteen weeks wages under Regulation 15 and 16(3) for which you are jointly and severally liable, you are going to face a possible multiple actions for constructive dismissal by the same individuals when they find out that the ‘Cower, Cringe and Tremble' Cleaning Company’s terms and conditions are less generous than those of the Blankshire County Council who have just landed you with the ‘dross they transferred into post six months previously which you only found out about when you received the employee information after the date of the transfer and find that you also have a large bill to pay for the cumulative leave that you have to pay for which the employees did not take prior to the transfer.

    In this event, (if you are not facing insolvency by this time or have just survived your first heart attack) you have a remedy under Regulation 12 (1) by lodging a complaint with the employment tribunal that the Blankshire County Council have failed to comply with Regulation 11 by failing to provide you with the required employee information. You must, under Regulation 11(2)(a) lodge this within 3 months from the date of the transfer. If the tribunal finds in your favour, then providing you have taken reasonably steps to mitigate your losses, Regulation 12(5) allows you to ‘put the boot in’ to the Council by claiming a minimum of £500 per employee. There is no maximum amount although the court has the power to award a lesser amount if it considers it just and equitable to do so. Alternatively, you can, during your tendering negotiations simply draw up an agreement for the transferor to indemnify you for losses incurred in respect of any breach of Regulations 11 and 13.

    In the end, it all boils down to what sort of an employer you are and even though we are all going through a pretty tough time at the moment, it would be a mistake in my view to think that the employment tribunals are going to be any less tolerant to blatant exploitation than they are at the minute just as it would be a fundamental mistake to believe that the little woman on the minimum wage who cleans your toilets every evening is not going to make an equally good job of cleaning out your wallet because it is people like her that TUPE was designed, and constructed by the EU to protect.

    All the best
     
  13. Iolis why are you potentially posting info on here that an employer could use to shaft employees.
     
  14. Just to clarify, for your self and Auld Yin, the current provider is an Asian outfit who judging by the overall performance, both management and employees evidently think they are working the graveyard shift on an empty tug boat. They have burning issues with the SIA and ISO9000, have been seemingly complicant in a number of on-site irregularities and I had the pleasure of watching one of the ******* scruffy urchins pulling his helmet off on a classic CCTV moment played to me by the in place Facilities Manager.

    We are taking a number of sites from this firm over the next month, I will not, under any circumstances whatsoever be taking on the cast of Fraggle Rock.

    Trust me my old China, the chances of getting someone like me in front of someone like you (I did very much like your inflections on that statement :) ) is slim to none. You would custard cream your polyester pants and implode if you saw the state of our new little enterprises 'HR' files (loosely termed), undeclared cash payments, falsified training records, false business references, I even sat here for 2 hours last night filling in their own employee satisfaction sheets for them in different colour pens :) An initial requirement of £10.00 an hour x 28 peak cap wearing monkeys for a 365/24-7 operation should have me brushing my teeth in Dom Perignon and coca paste by Christmas....
     
  15. Cheers for that, a sentiment echoed by about 6 pm's :)