TUPE and self-employed

Micky999

My company (a small business of around 20 people, with one office) has had a contract with a cleaning company for a few months and we aren't happy with their work. We've given the owner notice. Now he says that whoever takes over has to take on the particular cleaners he's employed, because he has no other work for them. The suggestion is that they are working primarily on our contract, bringing TUPE into the equation (which he has cited). I doubt they really are only working on our (small) contract - it wouldn't be enough to sustain anyone - but we have no proof/visibility of their contracts. This came as a surprise to us, but the more I read on TUPE the more crazy it seems (no matter how well intentioned). Furthermore, the person we are engaging to do the cleaning once their notice period is up is self-employed and in no position to take on employees from the former cleaning company or anyone else. Does TUPE apply if you cancel a cleaning contract with company A, especially after only a few months, and engage a self-employed person?

harrys_dad

I suggest you read this page on the ACAS website http://www.acas.org.uk/index.aspx?articleid=1655 and give their helpline a call. One key section of when TUPE may not apply says

Which transfers are not covered?

TUPE does not apply to:

transfer of a contract to provide goods or services where this doesn't involve the transfer of a business or part of a business

Micky999

From reading other posts and other sites prior to posting, I've been led to believe that the ACAS site is incorrect in this regard. There seem to be plenty of cases, particularly involving cleaning contracts (as they are very common) where TUPE has been applied without a transfer of (part of) a business. This is the surprising element that has caught people out. I can't post links, but see the ProCare and Cleaning Team web sites for blog articles.

Admittedly these are companies promoting services, but there is a lot of other anecdotal stuff too. I haven't found anything relating to a contract being taken on by someone who is self-employed. Logically you'd think TUPE would not apply (as the new supplier has no company/employees) but the law and logic...

Missme

Unless the contractor's business is changing hands TUPE does not apply.

There's no transfer here, the cleaners are being sacked for being rubbish as I read it.

Micky999

That's what I would have thought, but read MSE thread 3241010. TUPE seems also to be applied when there is a change in service provision, not just a transfer of the business. I know it's not my company's problem, but I am concerned for the self-employed cleaner we will be using and trying to establish the facts.

Micky999

And this, from the XpertHR web site: The Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) can apply to a service provision change (ie the transfer of a contract to provide a service), as well as to the transfer of a business.
A service provision change occurs where:
a service that has previously been carried out by the client is contracted out to a third party;
a contract to provide a service is awarded to a different contractor following tendering; or
a service that has previously been carried out by a contractor is brought back in-house by the client.
For a service provision change to be covered by the TUPE Regulations 2006, there must be an organised grouping of employees with the principal purpose of carrying out the activities on behalf of the client. The activities must not consist wholly or mainly of the supply of goods for the client’s use.
For example, if a contract to clean the client’s premises is retendered and awarded to a different contractor, if there is a team of employees (or one particular employee) dedicated to carrying out the cleaning at those premises, those employees will be transferred automatically to the new contractor.

LittleVoice

Micky999 wrote: »

My company (a small business of around 20 people, with one office) has had a contract with a cleaning company for a few months and we aren't happy with their work. We've given the owner notice. Now he says that whoever takes over has to take on the particular cleaners he's employed, because he has no other work for them. The suggestion is that they are working primarily on our contract, bringing TUPE into the equation (which he has cited). I doubt they really are only working on our (small) contract - it wouldn't be enough to sustain anyone - but we have no proof/visibility of their contracts. This came as a surprise to us, but the more I read on TUPE the more crazy it seems (no matter how well intentioned). Furthermore, the person we are engaging to do the cleaning once their notice period is up is self-employed and in no position to take on employees from the former cleaning company or anyone else. Does TUPE apply if you cancel a cleaning contract with company A, especially after only a few months, and engage a self-employed person?

Your company should ask for details of all the people involved - eg length of service, pay.

If the contract to supply the service is just a few months old and the cleaners were taken on for this contract, there may be little to lose other than the bother of terminating employment contracts.

By the way, being self-employed does not automatically mean the person has no employees.

getmore4less

There was a thread about this sort of situation not that long ago.

IIRC the OP(of that thread) was the person that had the problem with the cleaners and did not want anyone TUPEd to thm and sorted it.

CFC

Of course if you don't want any of the bother, just cancel the contract and say that there is now no cleaning needed and the work will not be done.
Then get someone in in 4=6 weeks time on the grounds that you have discovered you do need a cleaner....

harrys_dad

Why does he not just ring ACAS?

Micky999

A colleague did ring ACAS, but they weren't particularly helpful and said that all cases are different and we should get legal advice. I was hoping to avoid legal costs on what should be a trivial, tiny contract termination with a useless cleaning company.