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IACCM Contract Management Forum

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ESP Global Services
2014-04-09 10:22:23

Removal of resources on Customer request - the impact of employment law

I've seen numerous contracts with a clause wherein based on objections (not unreasonable)the customer can remove supplier staff, to be replaced by staff with similar experience etc..
In countries with weak labour laws this is not too much of an issue, however there does not seem to be any consideration for employment rights in countries with strong labour laws (EU), and have any of you added to, or replied with a provision that provides for reference to workplace relations/employment rights or similar?
 
 •   2014-04-14 13:30:38
In itself, the right for a customer to request replacement staff has no direct implication for employment law. They are not asking you to dismiss that person, just to replace them. Where I presume you foresee an issue is if you do not have alternative work fro that individual, but the customer would (perhaps rightly) take the view that this is your problem.

The only time i can really see your case for inserting an additional provision would be if a) you were acquiring that person from the customer (eg as part of an outsourcing deal); or b) they had selected the person in the first place and you had hired them on that basis.
 
 
 •  ESP Global Services  •   2014-04-16 08:17:39
Thanks Anon, and its both a) and b).

Mike
 
 
 •   2014-04-17 11:05:54
In the circumstances raised by Anonymous, I am wondering who would have the liability. If the original employer transfered the employee to an outsourcing company and then immediately requested removal of that employee from the project/work site, two questions seem to be relevant:

(a) Does the transfered employee have any other value to the outsourcing company such that (s)he could be placed on another assignment?

(b) Should local law treat the original employer as being responsible for "effective termination"? This seems like a specific legal question.

If the latter is true, then we still would need that effective termination to be considered unlawful in order for liability to accrue.

I suppose it's possible to ask for an indemnity from the original employer.
 
 
 •   2014-04-24 12:22:52
The answer is going to vary depending on where this is happening. For example, does TUPE apply?

But certainly it is strange that the client would be making this request if they know the individual so well; it almost sounds like they have an issue with them which they do not want to confront, so are seeking to pass the problem to you.
 
 
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