Having to TUPE a contracted cleaner?
Discussion
We have been using a third party company to do 2 hours of office cleaning for us once a week for many years. They send someone, not always the same person, to the job.
We have over time got a bit sick of the company as they are charging a small fortune for this simple clean job. Recent aggressive chasing for invoices to be paid has been the final straw so I gave them notice yesterday (3 months).
Had a call this morning pleading for us not the cancel, then followed by a comment that we have to take on the cleaner they send due to TUPE rules.
Is that the case? We pay a company who uses casual staff, how can we be obliged to provide employment to someone under these circumstances?
We have over time got a bit sick of the company as they are charging a small fortune for this simple clean job. Recent aggressive chasing for invoices to be paid has been the final straw so I gave them notice yesterday (3 months).
Had a call this morning pleading for us not the cancel, then followed by a comment that we have to take on the cleaner they send due to TUPE rules.
Is that the case? We pay a company who uses casual staff, how can we be obliged to provide employment to someone under these circumstances?
TUPE does not seem to apply in this case as you are not employing a person to clean. You are contracting a company who provides a person on an ad-hoc basis - see first example below.
From https://www.gov.uk/transfers-takeovers
Service provision changes
This is when:
- a service provided in-house (for example cleaning, workplace catering) is awarded to a contractor
- a contract ends and is given to a new contractor
- a contract ends and the work is transferred in-house by the former customer
Employees are not protected under TUPE if the contract is:
- for the supply of goods for the company s use (for example a restaurant changing food suppliers)
- for a single event or short-term task (for example a catering company being used for a large corporate event)
Only the employees who can be clearly identified as providing the service being transferred are protected.
Example
A courier collects and delivers for a business, but the packages are picked up or delivered by a number of different couriers on an ad hoc basis. The courier is not protected under TUPE.
A cleaner is employed by a company that decides to use an outside cleaning company instead. They are likely to be protected under TUPE.
From https://www.gov.uk/transfers-takeovers
Service provision changes
This is when:
- a service provided in-house (for example cleaning, workplace catering) is awarded to a contractor
- a contract ends and is given to a new contractor
- a contract ends and the work is transferred in-house by the former customer
Employees are not protected under TUPE if the contract is:
- for the supply of goods for the company s use (for example a restaurant changing food suppliers)
- for a single event or short-term task (for example a catering company being used for a large corporate event)
Only the employees who can be clearly identified as providing the service being transferred are protected.
Example
A courier collects and delivers for a business, but the packages are picked up or delivered by a number of different couriers on an ad hoc basis. The courier is not protected under TUPE.
A cleaner is employed by a company that decides to use an outside cleaning company instead. They are likely to be protected under TUPE.
Edited by LunarOne on Thursday 16th April 12:27
vikingaero said:
Can you not take the cleaning in-house and DIY for a month, and not employ another cleaning firm, so you won't need to TUPE anyone?
This. We are taking the cleaning in house permanently.When I told the incumbent supplier that, the response was we had to TUPE the cleaner over to us because 'employment law'.
Having done some reading on this they are unlikely to make this stick IMO. The cleaner does 2 hours a week for us, undoubtedly she will be doing shifts elsewhere, so TUPE doesn't apply. If she was specifically employed to do our contract then TUPE would apply. At least that is my understanding....
Thanks for all the comments so far.
M1AGM said:
Had a call this morning pleading for us not the cancel, then followed by a comment that we have to take on the cleaner they send due to TUPE rules.
Is that the case?
From what you’ve said, no. Is that the case?
They are just a contractor. You can cut them loose any time you like subject to any period of notice you have to give.
The reference to TUPE is an act of desperation.
M1AGM said:
Having done some reading on this they are unlikely to make this stick IMO. The cleaner does 2 hours a week for us, undoubtedly she will be doing shifts elsewhere, so TUPE doesn't apply. If she was specifically employed to do our contract then TUPE would apply. At least that is my understanding....
It's unmitigated nonsense from the cleaning company, there's absolutely no circumstance here where TUPE would apply.Just got this through on email:
As per our telephone conversation this morning as follows:
We believe that the Transfer of Undertakings (Protection of Employment) Regulations 2006 apply in these circumstances as there is an employee currently working on that contract in the United Kingdom. The transfer of this work from our Company to another supplier or yourself should you decide to take the cleaning inhouse would be classed as a ‘service provision change’ under the Regulations.
As the employee will be working for us on your contract immediately before the transfer, when you transfer the service to your new contractor or yourself, the employee is entitled to transfer to the new supplier, and her continuity of employment will be preserved.
Therefore, in order that we can meet our obligations under the Transfer of Undertakings (Protection of Employment) Regulations 2006, we request that you provide us with contact details of the proposed new contractor so that we are able to comply with our obligations under the Regulations by providing them with “employer liability information” at least 28 days prior to the transfer.
I would be grateful if you would respond to myself or xxx at your earliest convenience with the contact details of your new contractor. Please be aware that your new contractor or you also has obligations under the Regulations including the requirement to notify the transferring employee of any measures they intend to take in relation to the transferring employee following the transfer.
As per our telephone conversation this morning as follows:
We believe that the Transfer of Undertakings (Protection of Employment) Regulations 2006 apply in these circumstances as there is an employee currently working on that contract in the United Kingdom. The transfer of this work from our Company to another supplier or yourself should you decide to take the cleaning inhouse would be classed as a ‘service provision change’ under the Regulations.
As the employee will be working for us on your contract immediately before the transfer, when you transfer the service to your new contractor or yourself, the employee is entitled to transfer to the new supplier, and her continuity of employment will be preserved.
Therefore, in order that we can meet our obligations under the Transfer of Undertakings (Protection of Employment) Regulations 2006, we request that you provide us with contact details of the proposed new contractor so that we are able to comply with our obligations under the Regulations by providing them with “employer liability information” at least 28 days prior to the transfer.
I would be grateful if you would respond to myself or xxx at your earliest convenience with the contact details of your new contractor. Please be aware that your new contractor or you also has obligations under the Regulations including the requirement to notify the transferring employee of any measures they intend to take in relation to the transferring employee following the transfer.
Thank you for note.
Our understanding and experience is that you have serviced this small contract of two hours per week with an ad hoc rota of your employees who are deployed across multiple clients and sites and therefore we do not believe that there is a distinct and identifiable organised group of employees to transfer in relation to this contract.
We would therefore ask how you intend to demonstrate that the employee in question was deliberately organised by yourselves into a group whose principal purpose is delivering services for our company.
Our understanding and experience is that you have serviced this small contract of two hours per week with an ad hoc rota of your employees who are deployed across multiple clients and sites and therefore we do not believe that there is a distinct and identifiable organised group of employees to transfer in relation to this contract.
We would therefore ask how you intend to demonstrate that the employee in question was deliberately organised by yourselves into a group whose principal purpose is delivering services for our company.
I experienced this many years ago. Our company employed a cleaning company to do about 3 hours a day 5 days a week. It was the same person everyday. He ended up being a bit rubbish and unreliable, so we cancelled the contract and moved to a competitor. Somehow they TUPE'd him over and we ended up with the same bloke. Saved a bit of money though!!
clarkey said:
I experienced this many years ago. Our company employed a cleaning company to do about 3 hours a day 5 days a week. It was the same person everyday. He ended up being a bit rubbish and unreliable, so we cancelled the contract and moved to a competitor. Somehow they TUPE'd him over and we ended up with the same bloke. Saved a bit of money though!!
We looked at moving firms a few years back when the standards dropped and the competitors all said it will be probably be the same person who ends up doing the clean because of TUPE. It is bonkers. We didn’t bother moving for that reason. The current situation is different in that I am not giving the work to another company, it is going to be covered internally by a part time member of the team.The person the company send over has been the same for about 6 months so I expect they will push back on it being ad hoc staff, but unless they can demonstrate that they’ve employed a cleaner to primarily do a 2 hour clean for us once a week I dont think we are under TUPE.
Surely would only apply if they were 100% dedicated to serving your contract which at 2 hours a week I suspect is clearly rubbish - TUPE law is there to protect employees and even then only protects for so long - having had the misfortune to deal with TUPE on various contracts over the years it’s a right royal pain in the a@% and that’s one reason you get specific employment lawyers who know this inside out - but from what you have provided I can’t even fathom why they thing this is a TUPE situation
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