Taxi Driver Online

Here is an interesting one.
A school contract has just been advertised by Leicestershire County Council. It states that TUPE may apply because the current firm that has the contract employs the driver. The firm is 24/7 limited.
Now here is the interesting part. What would be the situation if I tender and win the contract because although I have no issue in employing the current driver the problem is that they will not be licensed by the same authority that I have my operators license and my vehicle license so unless they are willing to get themselves licensed by the same authority I can't employ them.
Would I be in breach of TUPE if I couldn't employ them?

Another contract has just come out with the same criteria.

Don't know much about TUPE, but would guess the onus would be on you to make the suitable arrangements to make sure the driver was qualified to work for you.

Possibly, but I suspect the driver will stay with the firm, undertaking another run.

Of course, if you have your vehicle situated a million miles from where the existing driver lives, then it might not be viable for him to transfer over.

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IDFIMH

The main issue is that they are licensed with another authority so they can't legally drive our vehicles and the contract starts in less than 3 weeks so the will not be able to get licensed with my authority in time to be able to do the job.

I think any new contractor would be allowed time to arrange any driver transfer, so there is no reason, in my unprofessional view, why you can't cover the job with another local driver while the new driver completes the application process.

That said, I'm quite sure he will stay with the old operator on another run.

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IDFIMH

I have asked ACAS for a view and they said that if the driver can't start on the start date because they don't have the correct license then you can refuse the transfer on operational grounds.
The drivers, there are more than one contract being tendered, have expressed a desire to transfer.
Some of the contract issues that are in the drivers contract are.
They take the vehicle home- I don't know where they live, it could be miles away.
They get paid even when schools are closed for holidays - so more than 28 days holiday.
The new company has to pay for the new license - They may not even get a license due to our local knowlege test that unless they are local they will not be able to pass very easily.
I have already spoken to our licensing team and they had indicated that assuming the knowlege test is passed 1st time it is still likely to take around 3 months from application to getting a badge.
Also the current employer is required to provide a new employer with the drivers details and a copy of their contract at least 28 days before the transfer. That is not possible because there is less than 3 weeks before the transfer has to take place.

TUPE is not applicable unless the route/job is EXACTLY as it was under the previous contract, any difference by way of passengers, times, schools, etc mean TUPE is void (so 1 kid more or 1 less gets you off) and you will have to PAYE him

Presumably you would have to cover your own job till said driver is badged for your LAs needs, he/she will already have a DBS+updates, you will have to pay him till he can work (2.5hrs per day), he has been on the NMW at 24x7ltd (PAYE)

You mean the route contract or contract of employment? BTW, they also pay standby when not working and do take cars home, thats how 24x7 cover whole counties, each car has its own base....





Not exactly, pay periods are shared out, i can send you last years planner
The annual 4 weeks holiday is spread over the 13 weeks of school holidays each scholastic year

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

chances are you will win it (or at least another base will)

last years "fixed price" (driver and 4 seater) was, as far as i can tell, £84/day, staffordshire lost 25 routes and won only 2 last august and none since, 20 drivers got elbowed out, every new tender i saw was a BIT different to the old ones as if county were avoiding TUPE issues but i know of NO other PAYE base here, only base budgies

this year, ive heard 14 cars were taken off drivers

I would add the PAYE 24x7 driver on the route wont get told about TUPE, they would prefer them not to leave too soon

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

I didn't win either of the contracts so I don't have the problem now. 2 other company's won them at quite low prices and I doubt that they will be taking on the drivers.

1. I doubt the drivers will ever hear about TUPE
2. I can bet the new routes are 1 kid more or 1 less than the previous contracts
3. Is possible 24x7 leics wont want to lose drivers till they know they arent needed, that could be Sept 3rd

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

I don't know about 1 and 3 but as for number 2, the contacts were exactly the same. The Council are well aware that the contract has to be exactly the same for TUPE to be relevent because a few years ago they tried to give another operator one of my contracts but the driver and escort had been employed by me specifically for that contract. The new operator refused to take them on the same pay and conditions that they had with me so in the end we kept the contract.

as if by magic up pops TUPE for 24x7 staffs

with 2 weeks school hols left and 24x7 saying county havent said who the new contractors are.....

1 has 4 years servive in, if they turn down the "job offer" they lose all employer rights and redundancy

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

County councils are excluded from TUPE, as a Kent CC Executive said at my TUPE hearing about 15years ago. In my case, I was employed by my own bus company to do a school bus from A to B.It was also a licenced bus route, so had to give the Traffic Commissioners 56 days notice to cancel the route. The new operator also has to give 56 days to start a new route. KCC chose to ignore those laws and there was only 2 weeks notice. On the Friday before the rote started, I approached the new operator and told him I was his new driver from Monday. no, I'm doing it myself he said. I said TUPE. What's that?

He decided to back the contact at an hour's notice. council, rather than extend my contract, employed another firm on a temporary basis, not running as a local bus route. A month later the one that took over from me was told to do the route or else. He did for a couple of weeks and went broke. Council re-tendered but had to re-employ temporary operator. I tendered for the route but it was won by KCC's own transport firm at half my price, running a brand new coach o the route, and it was over 8 miles a day more than I was doing as their depot was unlike mine, nowhere near the line of route..

Then to TUPE, it goes from first operator (me) to new operator; he backs it so it goes to temporary operator, back to new operator, then temporary operator the to the new incumbent, KCC. So my price was from memory, say, £200 a day using an elderly modern double decker, route was 2x 30 miles including dead run. Much the same as new operator, maybe 10 miles more, but at £120 a day! No wonder he went broke. I never found out what the temporary operator cost (twice). The KCC company was £160 a day. Their depot at Aylesford is 40 miles from Rye, so that's 160 miles to run a brand new coach costing in those days about £280k. As well as that, my Tribunal case went on for a good day, cost them a fortune in solicitors fees and they lost. I was awarded a 5-figure sum, but it cost me £8k in solicitors fees.

So the TUPE claim goes through all those operators but the temporary firm were excluded, the other lot went skint very quickly, and the KCC transport emporia wasted about 3 years. The loser also has to pay outstanding holiday pay, pick up any other outstanding disciplinary matters, pensions, the lot.

Te reason I quote this case because there is a marked similarity in licencing arrangements, with the 56 days (now 72 days) for route licencing and the time taken to get new cab driving licences. I'm currently involved in a much bigger TUPE/wrongful dismissal/protective award case involving over 100 staff when the bus company I worked for part-time suddenly closed without notice last August. 250+ staff involved. When these contracts are transferred, the staff involved have to be consulted. If not, the Protective Award comes into play. It seems to me that the cab industry in general is unaware of the consequences of TUPE, as are county councils.

If the employer went tits up/shut surely TUPE could not be in play as the 250 had no employer?

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