Tupe

[OrangeHopper]

I'm about to sign a new contract but there is a clause involved with TUPE.

It states that the supplier (i.e. my limited company) must, upon request, supplied the details of the contractor's (i.e. me) remuneration including pay, pension, benefits and so on.

It states that this is related to TUPE but it doesn't say why and how it would be used.

Has anyone else seen a similar clause and received an acceptable explanation.

[Sockpuppet]

TUPE only kicks in should your co get taken over/loses the contract to another supplier.

In any case you can counter act this with a data protection act clause. As you are not assigned to the contract full time then you can claim you don't need to provide this (as TUPE relates to the work being done and roles etc) you can claim that your are your co director so outside the scope of TUPE.

[WindyAnna]

The only way that I could possible see TUPE being applicable would be if they chose to move the work contracted to yourCo to another supplier .... BUT I don't think TUPE applies in that case as it is usually only the company that actually employs the people who need to invoke TUPE, not a third party, i.e. the client.

In any csae TUPE is only invoked at the point of transfer and you are then obliged to pass the details to the new company NOT to anyone else.

Thinking about it ... if TUPE applied when a client choses to move the work from one company to another this would mean that in all cases where the client choses to engage a new supplier instead of yourCo the the new contractor's myCo would be obliged to take the contractor on ... which would be madness!! Am I making any sense?

So I conclude it is cr*p so get it removed from the contract.

[XLMonkey]

As you are not assigned to the contract full time then you can claim you don't need to provide this (as TUPE relates to the work being done and roles etc) you can claim that your are your co director so outside the scope of TUPE.

minor point, but TUPE applies to all employees working more than 50% of their time within a particular part of the business (or in this case, for a particular client). So, you don't have to be full time.

not sure that being a director removes you from the scope either....

[OrangeHopper]

My guess is that my client, who is providing services to their client, has previously had a client move my client's work to another supplier and this has somehow been complicated by the presence of contractors.

[XLMonkey]

TUPE applies wherever the main contract is being transferred from one customer to another.

on WindyAnnas point - "if TUPE applied when a client choses to move the work from one company to another this would mean that in all cases where the client choses to engage a new supplier instead of yourCo the the new contractor's myCo would be obliged to take the contractor on ... which would be madness!!"

... it does apply to this situation ... and it is madness. The test that is applied by the courts is whether the services are largely the same in nature (e.g. office cleaning), whether the contract is expiring naturally or being terminated by the client, and whether the client intended for the services to continue to be delivered after the expiry date of the contract...

(as far as I know, your IR35 status has no bearing on the application of TUPE)

I have had the happy experience of working on projects involving TUPE transfer, and it is a beautiful example of legislation designed to protect employees that often has the opposite effect.

I think that the clause in question is one that government departments use to make it easier to transfer staff from one major contractor to another (e.g. where CapGemini replaces EDS and takes on a load of their people). It's there to make sure that you co-operate with the new prime contractor in the event that the end-client decides to replace them.

As to what to do about the clause...well, you could argue the toss and get it removed but I'm not sure that I'd be that bothered. I don't see how having it in could work against your interests. TUPE legislation applies to yourco and you regardless of whether it is written into the contract specifically; and the additional obligations that you have described are not particularly onerous.

[OrangeHopper]

Thanks for the replies people, much appreciated.

I agree in that I'm not too bothered.

I just wondered why my personal renumeration was applicable when the relationship was the subject of a contract.

[XLMonkey]

I just wondered why my personal renumeration was applicable when the relationship was the subject of a contract.

because TUPE applies to your personal relationship with yourco. Under TUPE regulations, its theoretically possible that you would transfer (as an employee) from yourco to the new prime contractor. That prime contractor has to offer you terms and conditions at least as good as your current ones. To do this, they need to know what your current ts and cs are.

that's relevant if you are an employee of a big firm with lots of staff, but its almost entirely a moot point if you run a one-person contracting company.

[OrangeHopper]

Thanks again XL. That explains the "can't increase remuneration clauses".