I have a contract with county hall for transporting students to a special school. The original contract was for 3 students and an escort. The job has been changed to add another student. What this means is that I have to use a larger vehicle and some extra time and niles. The council do not like the revised price and are putting the job out to tender. The driver and escort that I have on the job are both employees of the company and in the event that I don't win the contract and it is awarded to another company, can my employees claim TUPE and continue the contract with the new company?

I have a contract with county hall for transporting students to a special school. The original contract was for 3 students and an escort. The job has been changed to add another student. What this means is that I have to use a larger vehicle and some extra time and niles. The council do not like the revised price and are putting the job out to tender. The driver and escort that I have on the job are both employees of the company and in the event that I don't win the contract and it is awarded to another company, can my employees claim TUPE and continue the contract with the new company?

Doubt it, TUPE only covers you if your company gets taken over and you transfer to the new company.

Yes. But it depends whether this is their only work for your company or do other drivers and escort do this run as well?

It relates to the contract.

We had similar issues down here and TUPE applied.

Doubt it, TUPE only covers you if your company gets taken over and you transfer to the new company.

That is how it read to me but I know that some on here have a different view.

Having won a TUPE claim against Kent County Council when my tendered school bus route was taken over by their own Kent Top Travel bus company, KCC were of the impression that TUPE "doesn't apply". That was a very expensive mistake on their part.

Providing your driver and escort have been employed (you pay their tax and NI) on that contract, and you say they have solely been employed on that contract and you have documents to prove it, then TUPE will apply providing the new service is not substantially different to the one you provided.

So your service goes from home A, via home B to school X. They alter the run to go via home C slightly off line of route between home A and school X. The fact that the original passenger still go from A and B to X means it's still substantially the same service. TUPE applies.

One of the reasons TUPE was introduced in the UK was due to our friends in the EU sticking their oars in and giving displaced workers RIGHTS (wait for input from TT) after our "friend" Thatcher tried privatising the NHS cleaning services and lowering wages. She made a very, very, expensive mistake when she found out about TUPE and that it DOES apply in the UK.

Whilst it may not be of any comfort to you to lose your contract and staff, your staff should not suffer loss of work, wages or conditions if the contract transfers to another operator. They are obliged to employ them at the same or better rates and conditions.

This is something county councils fail to take into account when they re-let taxi contract, mainly because most taxi drivers are self-employed. The CC must also take into account whether the escort and driver are on minimum wages or above. Again, KCC have found this out the hard was recently when they reminded operators of the need to pay MW to escorts! A number of contracts were handed back and re-tendered because of that.

Edited to add that if the new operator fails to employ your ex-staff, then they are guilty of causing unfair dismissal. It is your duty to inform your staff of the situation and to provide details of wages and T&C of employment to others who may be tendering for the job if requested. The new incumbent may have a nasty surprise in store.

Transfer of Employees - T.U.P.E.

Note – this Procurement may be subject to the transfer of employees under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). The application of TUPE will always be a matter of law. It is the responsibility of Tenderers to make their own enquiries directly with the existing provider to obtain such TUPE and related information as may be required in order to submit an offer which includes the full costs to the Tenderer of TUPE compliance. The County Council recommends that Tenderers seek their own legal advice regarding this area of employment law. Details of the incumbent providers can be provided on request.

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) known colloquially as TUPE and pronounced tu-pee,[1] are the United Kingdom's implementation of the European Union Business Transfers Directive.[2] It is an important part of UK labour law, protecting employees whose business is being transferred to another business. The 2006 regulations replace the old 1981 regulations (SI 1981/1794) which implemented the original Directive.[3]

The regulations' main aims are to ensure that,

just because of the transfer, employees are not dismissed before or after (unless there is an 'economic, technical or organisational' reason, r 7(1)(b))
employees' most important terms and conditions of contracts are not worsened before or after the transfer (unless there is an 'economic, technical or organisational' reason, r 4(4)(b))
affected employees are informed and consulted through representatives

This does not apply to transfers which go merely through the sale of a company's shares. When that happens, because the company is still the same company, all contractual obligations stay the same. The Directive and Regulations apply to other forms of transfer, through sale of physical assets and leases. The regulations also apply in some cases for work transferred to contractors. This protected contract terms for workers include hours of work, pay, length of service and so on, but pension entitlement is excluded

My case was at Ashford Industrial Tribunal, about 3 year ago, Gould-v-Kent Top Travel. I don't have the case details to hand and google can't seem to find the actual case, though it finds the barrister who appeared for KTT (and lost though she doesn't mention that bit).