TUPE - How could it affect us
Discussion
Hi, don't know if this is the best place to ask.
We are involved in negotiating a very large, for us, contract with a new customer. We have won it and now negotiating the final terms. Tupe has been talked about as being applicable and I'm not sure how it may affect us.
Contract details
12 months
3 Full time staff
The previous supplier had worked on a recurring 12 month basis for 3 years. The contract was renewed every year.
Their contract ended at the end of Feb, ours will begin at the beginning of May
The old supplier is based 250 miles away from us
The main reasons they lost the contract were high turnover of staff and lack of delivery
Our customer doesn't want the old staff involved in the contract going forward.
The old supplier hasn't raised Tupe with our customer, I don't know if there is a time limit from a contract ending to moving the staff under Tupe?
The service we are providing has been extended from the previous company. It covers everything they did but we are adding about 15% new services.
I am waiting to see a commercial HR lawyer but just wondered if anybody had experience of anything similar.
Many thanks.
We are involved in negotiating a very large, for us, contract with a new customer. We have won it and now negotiating the final terms. Tupe has been talked about as being applicable and I'm not sure how it may affect us.
Contract details
12 months
3 Full time staff
The previous supplier had worked on a recurring 12 month basis for 3 years. The contract was renewed every year.
Their contract ended at the end of Feb, ours will begin at the beginning of May
The old supplier is based 250 miles away from us
The main reasons they lost the contract were high turnover of staff and lack of delivery
Our customer doesn't want the old staff involved in the contract going forward.
The old supplier hasn't raised Tupe with our customer, I don't know if there is a time limit from a contract ending to moving the staff under Tupe?
The service we are providing has been extended from the previous company. It covers everything they did but we are adding about 15% new services.
I am waiting to see a commercial HR lawyer but just wondered if anybody had experience of anything similar.
Many thanks.
I'm far from an expert but have had recent dealing with our legal team and TUPE. I think it depends if the current employees are fully utilised on the existing contract, and if the 'new' roles or service offerings are similar. If that is the case you are potentially liable for redundancy costs as its unlikely they would relocate and 250 miles isn't reasonable.
You may find the old company doesn't push it and either keeps them on or makes them redundant themselves.
We successfully argued we were moving from a service model to a direct model with different job roles and that TUPE didn't apply. The other company didn't agree but didn't push it. our legal team were confident of our position but it did open us up to potential legal action and a court would have decided who was right.
You may find the old company doesn't push it and either keeps them on or makes them redundant themselves.
We successfully argued we were moving from a service model to a direct model with different job roles and that TUPE didn't apply. The other company didn't agree but didn't push it. our legal team were confident of our position but it did open us up to potential legal action and a court would have decided who was right.
I think you need professional advice - if TUPE applies, you are obliged to consult the new staff who ordinarily would then TUPE across to you unless they opt out.
Legally speaking, your customer does not really have a say in this although with some clever lawyers, the distance involved and different service model/roles, you may be able to find some way that it doesn't apply.
I would take your fellow pistonheader up on their offer and then armed with a bit more information, take professional advice from an employment solicitor soonest.
Very simplistically assuming TUPE applies, you would be normally be obliged to take the existing staff on their current pay package (ie their package is protected).
If the staff do not choose to TUPE across, their current employment would automatically end on the day of transfer and the old firm can choose to re-employ them or not.
Failure to follow the correct process can open yourself up to future TUPE claims and you may even ask for a TUPE related indemnity from the client (bit late now i would have thought). Many companies awarding service related tenders are blissfully unaware of TUPE, let alone how proper adherence to the processes required may delay project transfer/implementation date wit the new supplier taking on most of the risk.
Legally speaking, your customer does not really have a say in this although with some clever lawyers, the distance involved and different service model/roles, you may be able to find some way that it doesn't apply.
I would take your fellow pistonheader up on their offer and then armed with a bit more information, take professional advice from an employment solicitor soonest.
Very simplistically assuming TUPE applies, you would be normally be obliged to take the existing staff on their current pay package (ie their package is protected).
If the staff do not choose to TUPE across, their current employment would automatically end on the day of transfer and the old firm can choose to re-employ them or not.
Failure to follow the correct process can open yourself up to future TUPE claims and you may even ask for a TUPE related indemnity from the client (bit late now i would have thought). Many companies awarding service related tenders are blissfully unaware of TUPE, let alone how proper adherence to the processes required may delay project transfer/implementation date wit the new supplier taking on most of the risk.
Edited by arguti on Tuesday 24th April 14:39
Thanks for all the reply's and thanks for the offer Australiam.
We decided to seek professional help on this and been working with a very good solicitor. The contract does fall under Tupe legislation and yes we will be responsible for either transferring the current staff, but because of the distance probably making them redundant if they don't want to relocate.
It has been a bit of an eye opener, our solicitor wasn't very complimentary of the legislation.
We decided to seek professional help on this and been working with a very good solicitor. The contract does fall under Tupe legislation and yes we will be responsible for either transferring the current staff, but because of the distance probably making them redundant if they don't want to relocate.
It has been a bit of an eye opener, our solicitor wasn't very complimentary of the legislation.
ozzuk said:
On the above post, I'm not sure I agree with 'if staff choose to not move across'. It can be true, however given the 250 mile distance as I said earlier i'd be surprised if that is seen as reasonable, so it could be a redundancy situation (which you could be liable for).
As I said, the default position is that they automatically transfer across,there may be reasons why they have to be made redundant as has been pointed out but is the new service provider that takes on the responsibility, financial or otherwise.Gassing Station | Business | Top of Page | What's New | My Stuff