Taxi Driver Online

Dear XXXXX

The contract tender (XXXXXXXXX) has been evaluated and I can confirm that you were second place with £118 per day and the winning operator submitted £82 per day.

Therefore, we intend to award to the winning operator. However, before doing this I need to establish whether TUPE applies. To do this I require the following employee liability information:

- Name of employees affected
- Age of employees affected
- Particulars of employment (employee contract details including terms and conditions, rates of pay and contracted hours)
- Disciplinary and grievance records of the employees
- Any other rights and liabilities that will transfer
- Confirmation that the employees affected have been consulted in relation to TUPE and their initial indication whether they wish to pursue or 'opt out'
- Confirmation of the percentage of the affected employees working hours are supported by the contract.

This information needs to be presented to the incoming employer within 14 days of the start of the contract. Therefore, I require the information by 20th December in order for the transfer to be completed for the start of the new school term.

To enable this to happen I request that you continue to cover the contract for the remaining 3 operating days beyond your termination date of 17th December 2013, so that there is less disruption to the service users.

Can you let me know whether this is possible and provide me with an indication as to whether you will be able to supply the above information by the date specified?

Regards

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Grandad,

It seems your CC do things rather more officially than Kent. Here they still deny that TUPE exists. Of course your staff will want to transfer. If they then decide not to stay with the new incumbent that is their choice. I suspect they're also entitled to travelling expenses to and from the new operating centre.

I wonder if the new employer is even aware that TUPE applies or indeed what it means?

I don't think they had even considdered TUPE until I mentioned it. From the sounds of it the winning bidder is not aware of the presence of TUPE for this contract and I don't even think they have been informed that they won the contract yet. I have given the county council the details of the driver and escort, their rates of pay and the details regarding the vehicle that they use being owned by us and we pay for everything. However they now want me to send them copies if the contracts of employment for the 2 staff members. I don't think I should give these to the county council because this is company sensative information. I will of course sipply the information to the new company. It seems obvious to me that the county council know that the winning tender is to low and they will invite the winner to re tender in view of the TUPE clause. I think this is wrong and that they should have been informed about the possibility of TUPE BEFORE submitting their tender. In effect they will be getting 2 bites at the cherry. I wouldn't mind betting that the council will give them some sort of clue regarding the price tendered by me just to ensure that I don't keep the job.
In my opinion the new company should either stand by their price or withdraw completely. Obviously other tenders would have taken something into account before submitting their price otherwise I would not have finished second. I know of one company who tendered £200 for the job.

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Grandad,

I suspect up until now they didn't.

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IDFIMH

I'm not sure the council can request that.

They are the punter, not the employer, or prospective employer.

What reasons would someone losing a tender want to help the person who has just told them to f*** off?

Tell the council to tell the new supplier to contact you where you can discuss TUPE with them, and arrange for the transfer of staff.

I'm quite sure the new supplier will have a rethink.

_________________
IDFIMH

This is what I intend to do this morning. Understandably the 2 members of staff are concerned about their jobs and how people at the new company react to them comming in on what I would guess is a better deal than they are already on.

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Grandad,

Is there nothing in the CC contract that mentions TUPE? There is in the KCC one, if ever anyone ever reads to the back of the book!

You're right, the TUPE is between you and the new incumbent, not the CC. I suspect the CC is just checking to make sure you have a contract of employment in place with your people. I would also suggest that as a lot of taxi providers use 100% self-employed staff, this may be why the CC fail to take this into account when thy issue the invitation to tender documents.

I have not seen anything in the tender documents that mentions TUPE but that is not to say that it isn't there.

_________________
Grandad,

This is a game of bluff Mr Grandad (albeit dealing with good people's jobs).

If I was you I would be very interested in the nature of the winning bidder's set up, because if he is a one man band, or he has people ready to go with this contract, then he has quite a dilemma on his hands.

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IDFIMH

The latest email from the County Council is saying that they are seeking legal advice. I have a feeling that they have spoken to the new company and they have said that they don't want the staff because they have their own (self employed).
I think the Council are seeking legal advice hoping that they are told that TUPE does not apply. I will then have to tell them that it will be for a tribunal to decide if TUPE applies or not.

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Grandad,

If you really want to pizz off the new company tell em

My staff are members of UNITE GMB or RMT and you will have to negotiate with that union and then watch em run for cover.

The council have no right to see your staffs contract of employment / statement of particulars unless they have a policy on "living wages" in your area when they can.

ie they can deny any company the right to tender for contracts if they only pay the minimum wage and must report any company they find paying less than the minimum wage!

_________________
All posts by this contributor are made in a strictly personal capacity

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They are testing you to check the employees ARE employees when in fact, its got naff all to do with them, in FACT I cant see why they are involved, its a matter for the old and new contractors only, TUPE makes no mention of 3rd parties, LCC are just making sure no crap hits them

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Of all the things ive lost, i miss my mind the most

I have no doubt that is correct, but TUPE doesn't, as far as I can see, have an exemption for that council and the winning bidder.

I think the council has messed up by not mentioning TUPE in the tender document, but the fella to be worried is the winning bidder.

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IDFIMH

KCC taxi tenders never mention TUPE, but the Contract book does.

The worried party should indeed by the winning bidder! If it's a one-man-band, then he will lose considerably. LCC will be left to offer the tender to next highest or even a much higher bidder. If the latter is the case, then get the county auditor involved.

It is down to you and your staff to show they are employed by you and are employed on the last date of the contract by you on this particular run and that this is their main work for you. Copies of allocations/rosters and the like will help with the Tribunal case.

TUPE does not apply to:

transfers by share take-over because, when a company's shares are sold to new shareholders, there is no transfer of the business: the same company continues to be the employer
transfer of assets only (eg the sale of equipment alone wouldn't be covered but the sale of a going concern including equipment would be covered)
transfer of a contract to provide goods or services where this doesn't involve the transfer of a business or part of a business
transfers of undertakings situated outside the UK.
Could this be a sticking point?

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Grandad,