Contract Cleaner TUPE transfer??

hattyhatmaker

Dear all, I wonder if you can help....


In May 2014 our cleaners retired, rather than employ new staff we decided to engage a sub contract cleaning provider in August 2014. We have had no issue with the level of service but as part of a cost cutting exercise we have had to cancel the contract giving the required 3 months notice. They have now written accepting our notice but advising there may be a TUPE obligation as we are taking the provision in house. We will not be employing anyone we will just be asking individuals to clean their own desks at the end of the day and the whole point of cancelling the contract is to save costs so why would we then want to take on their employee?? Plus he works for the cleaning contractor still for other sites how can he also work for us?


I've never heard of this before and I can't believe TUPE would apply when we just want to cancel the service and are not planning on taking on more staff or pass it to another contractor?


Any advice gratefully received

Fluff15

hattyhatmaker wrote: »

Dear all, I wonder if you can help....


In May 2014 our cleaners retired, rather than employ new staff we decided to engage a sub contract cleaning provider in August 2014. We have had no issue with the level of service but as part of a cost cutting exercise we have had to cancel the contract giving the required 3 months notice. They have now written accepting our notice but advising there may be a TUPE obligation as we are taking the provision in house. We will not be employing anyone we will just be asking individuals to clean their own desks at the end of the day and the whole point of cancelling the contract is to save costs so why would we then want to take on their employee?? Plus he works for the cleaning contractor still for other sites how can he also work for us?


I've never heard of this before and I can't believe TUPE would apply when we just want to cancel the service and are not planning on taking on more staff or pass it to another contractor?


Any advice gratefully received

I do not believe TUPE would apply here. ACAS have a very good guide, but the part that applies to your situation is: the activities should remain fundamentally the same. If the same work is being performed, with the same equipment at the same premises then TUPE is likely to apply. However if the work activities are fundamentally different after the transfer then TUPE will not apply.

For example - PublicserviceCo contracted their care services to four providers including SupportCo who carried out work (“work package A”) on their behalf. On expiry of the contract publicserviceCo retendered the work and SupportCo lost the contract. The work previously carried out was randomly divided amongst the other successful providers, so “work package A” was no longer a single identifiable activity. The TUPE regulations are not likely to apply because the work had become fragmented across a number of different contracts and the employees would be unlikely to be doing the same work.

So, for your business, the cleaning would have been "work package A", and as it is being distributed within the company the role no longer exists and therefore TUPE cannot apply.

theEnd

TUPE shouldn't apply.
If you hired new staff or engaged a new cleaning company, it would.

Expect more and more service companies to throw the term out there as it means they can dodge any commitments they have to their employees.

General_Grant

If the current individuals work on other contracts I don't believe they would be included in TUPE arrangements. They are not solely employed to do work on your premises. There is case law on this type of thing. Perhaps this is included in the link posted earlier.