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Agencies and TUPE anyone know ?

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My partner worked as a part time cleaner at a pub through an employment agency, nothing special but it's a job, she started in April 2017, the pub took her on their "books" as their employee in January this year, the holiday year at the agency runs from October the 31st - 1st November each year, so when she moved to the pub from the agency the agency owed her 20 hours holiday pay according to Gov.co.uk's holiday pay calculator, now the agency totally ignored her requests via email to confirm this, they don't answer the phone they have a history of this with other employees apparently, so she contacted ACAS they contacted the agency successfully and ACAS told us the agency claims that she "TUPED" from the agency to the employer so therefore the new employer should owe her the disputed 20 hours holiday pay. My partner showed this claim to her boss at the pub and he says no.

 

The dilemma now is does she go ahead with a Tribunal where she could lose and end up with costs due to the management of both her employer and the agency behaving like they are in a carry on film ?.... it's not about the money she is owed now as it's only around £160 but it's the principle as the agency involved has "previous" according to reviews on a well know job website, w understand there is always 2 sides to a story etc....

 

Question is when an agency worker transfers to the employer through a TUPE as they claim should there be supporting paperwork etc explaining the terms and conditions of the TUPE and should't the employee concerned be able to view this under the data protection act or whatever is it known by these days ?

 

Have also just found out that the new employer should have provided my partner with a written contract by 2 months, which they haven't....

 

Any help would be great, thanks in advance.

 

 

steve

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I'm no lawyer but I always thought TUPE came into efect when one company bought out another,not when someone changed employers of their own will...

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I'm no lawyer but I always thought TUPE came into efect when one company bought out another,not when someone changed employers of their own will...

 

Well ACAS informed us the agency claims:

 

"The employer (agency) is saying that XXXXXX's employment transferred to XXXXX (employer, Pub) under a Transfer of Undertaking (Tupe), therefore they believe that there has been no break in employment and that any liability for holiday pay has transferred to XXXXXXX (employer,Pub)"

 

I would have thought that the agency should have still been responsible for the accrued hours holiday until the transfer date...

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My partner worked as a part time cleaner at a pub through an employment agency, nothing special but it's a job, she started in April 2017, the pub took her on their "books" as their employee in January this year, the holiday year at the agency runs from October the 31st - 1st November each year, so when she moved to the pub from the agency the agency owed her 20 hours holiday pay according to Gov.co.uk's holiday pay calculator, now the agency totally ignored her requests via email to confirm this, they don't answer the phone they have a history of this with other employees apparently, so she contacted ACAS they contacted the agency successfully and ACAS told us the agency claims that she "TUPED" from the agency to the employer so therefore the new employer should owe her the disputed 20 hours holiday pay. My partner showed this claim to her boss at the pub and he says no.

 

The dilemma now is does she go ahead with a Tribunal where she could lose and end up with costs due to the management of both her employer and the agency behaving like they are in a carry on film ?.... it's not about the money she is owed now as it's only around £160 but it's the principle as the agency involved has "previous" according to reviews on a well know job website, w understand there is always 2 sides to a story etc....

 

Question is when an agency worker transfers to the employer through a TUPE as they claim should there be supporting paperwork etc explaining the terms and conditions of the TUPE and should't the employee concerned be able to view this under the data protection act or whatever is it known by these days ?

 

Have also just found out that the new employer should have provided my partner with a written contract by 2 months, which they haven't....

 

Any help would be great, thanks in advance.

 

steve

 

To be honest TUPE transfers can be very complicated and you would be best advised to seek professional advice (from a specialist solicitor) if your partner wants to pursue it. Having said that, and although I fully appreciate it is the principle and the fact you say the company has “previous”, the costs involved would likely be prohibitive and far exceed any amount your partner may recover.

 

I believe Sheffield Uni have a free legal advice clinic (run by law students who are supervised by a solicitor) who may be able to provide you with some initial advice. Here is the link https://www.sheffield.ac.uk/law/freelaw

 

---------- Post added 13-04-2018 at 12:37 ----------

 

I'm no lawyer but I always thought TUPE came into efect when one company bought out another,not when someone changed employers of their own will...

 

The OP doesn’t state that his partner did change employers of their own free will. There are in fact two distinct circumstances in which a TUPE transfer can take place; broadly speaking (1) where an employee is working in a business which is sold or (2) where an employee is working in the provision of a service which is outsourced to another organisation.

 

As mentioned above TUPE is a fairly complicated area of employment law and the OP’s partner would be best advised to seek professional advice.

 

---------- Post added 13-04-2018 at 13:12 ----------

 

Forgot to mention above, but yes employees are entitled to a written statement of particulars i.e. the terms and conditions of their employement (which is different to a written contract) within two months of starting their employment. If your partner hasn’t received this then she should ask her employer.

Edited by Guest

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