I was asked, as I’m preparing to tender for a contract, to establish if any of my staff fall under TUPE. Details below. My thinking is only my wife and I do as we own the company and all of our trainers are freelancers. Anybody knows the ins and outs of such?
As a current supplier of the service, I am required to ascertain whether should you not be awarded all or part of this contract that any of your employees (if applicable) would under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) be eligible to transfer to the winning Contractor(s). The main guideline as to a persons eligibility under the TUPE regulations is that, the person must be undertaking more than 50% of their time working on the current contract.

You need proper advice. It wouldn’t take long to find out.

The concenr is that, while you may use freelancers, some may be deemed to fall under TUPE in any event.

As a general rule, you ought to be able to determine whether the work carried out under this contract represents more or less than 50% of your business’s overall work.

it is VERY complicated and cannot easily be answered from the information provided here and legal advice is best sought IMHO.
It applies if you take over a contract awarded to someone else previously and TUPE applies to their staff.
If say a council/company etc tender out for cleaning/IT/HR whatever and you win you have now got the undertaking and get the previous staff (very simplistivc view )who transfer to the winning tender via TUPE with protected terms and conditions as per their current contract

I understand so much but need more detailed advice. As a tiny company we don’t have a lawyer so where do I go? I’ve found out a lot from: http://www.tssa.org.uk/article-46.php3?id_article=1382 but there are more questions understandably.

You will need a specialist really to advise you I have dealt with 2 now as a Union rep and it is just very confusing/complicated and we almost always just get a legal view form a trained employment lawyer …without knowing the exact details I could not offer an opinion anyway.

It is critical to get legal advice because if you do not offer comparable benefits (PENSION Is a major worry if they are in LGPS or a SERPS one) then every employee can resign and sue for unfair dismisall …which would be hugely expensive to defend even if you do win. They also work under their previous terms and conditions and personell handbook etc which can be akward to deal with.
However you may win the whole contract just employ everyone as is with no change of anything to them and just take the management fee for doing so
You can e-mail if you wish (in profile) and I will try and assist some more if you give more details but I would be very wary as (no disrespect intended) you sound out of your depth here as am I

hairychested – email me at ourmaninthenorth AT googlemail.com and I’ll see if I can ask someone in the employment team here (the non-contentious employment lawyers are all pretty quiet these days).

Let me have as full a set of details as you can, including:

1. If the contract is a newly tendered piece of work;
2. Who the other contracting party would be;
3. What the contract would represent in terms of percentage of business time taken up (in percentage terms);
4. What the contract would represent in terms of individual time taken up (in percentage terms);
5. Whether anyone was conducting the contract bewfore you;
6. If yes to 5, whether you are aware of anyone having been TUPE’d to the organisation awarding the contract from the previous supplier;
7. How you contract with your freelancers, and what percentage of their time they spend working for your business (that you’re aware of).

Tom

I defer to ourman

Thanks for that, Tom. I’ll email you when I get back home as the head is spinning right now.