Michelle Weir of Lameys was appointed as supervisor for Sunshine Care Limited’s CVA on 15 January 2015. The CVA has meant the Company’s survival and a far better outcome for its creditors than would be possible without it. In addition, the elements of care which it continues to provide have been able to continue, avoiding turmoil and upset for the vulnerable people who rely on the service.
Before the CVA started, Plymouth City Council terminated its contract with Sunshine Care Limited for the provision of hourly domiciliary care and divided that work between three new providers, as a result of Sunshine Care Limited’s insolvency. Various employees of Sunshine Care Limited were moved to the new providers. In these circumstances it was always Lameys view that the provisions of Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 (“TUPE”) were likely to apply to the transfers. However, it was believed RPO would be likely to pay all TUPE’d employees for any unpaid wages.
As the CVA is now in force, RPO have now reviewed the employees’ claims. Lameys understand RPO have formed the view TUPE did apply to the transfers. However, they have also concluded RPO will not pay the TUPE’d employees for their arrears of wages. RPO’s view is that payment of any unpaid wages for employees who have TUPE transferred will be the responsibility of the new providers to which the employees have transferred.
Michelle Weir commented, “It is important to note that this change in expectations in relation to payments to be made from RPO to the Sunshine Care Limited’s former employees does not affect employees who were not TUPE transferred.”
There were similar circumstances surrounding the domiciliary care provided in Bristol. However, in Bristol the Council and the new providers have dealt with the transfers as TUPE ones from the outset.