TUPE when cancelling contracted services

chrissimpson22

Morning everyone,
I've had a quick look round and found some older posts relating to TUPE but nothing that quite matched up with my scenario as they related to taking over provision between old and new contractors.

We have a cleaning company contracted to do our cleaning services (4hrs/wk) and i've served notice on them (due to cease start of August).

I didn't cite the fact that we were disappointed with their services, but rather advised that we were moving our cleaning services in house (the plan is to distribute the work between existing staff)

Our cleaning contractor has then come back to us citing TUPE regs and seems to be suggesting that we take on their cleaner as a member of our staff.

Can someone advise where we stand with this?

TIA

WestonDave

I think if you were to employ a cleaner then it is likely that you'd need to take their cleaner on under TUPE. However it appears that in this case the role of cleaner is now redundant and so either the cleaning contractor or yourself needs to go through a redundancy process with the cleaner - I would think that it would be the contractor given that the employment was with them and that the cleaner is now redundant as a result of your decision to do away with having a cleaner.


I would go back to them in the first instance and state that there is no longer going to be "a cleaner" and that they need to make their employee redundant unless they can find other work for them. Worth pushing it their way - they may back off and save you the expense of proper legal advice which is what you probably need.

busybee100

Not sure if there are other things which supersede but my first thought is how long has the cleaner and contractor been working for them/you?

polgara

Yes in principle TUPE would apply - you would need to transfer them in, declare an ETO (economic, technical or organisational reason) and then consult with all the staff member AND the other cleaning staff about a restructure/redundancy.

Fluff15

There was literally a thread on this just the other week that was exactly the same:

https://forums.moneysavingexpert.com/discussion/5282810

No, TUPE would not apply as the role is no longer valid as the duties are spread between existing staff.

TBagpuss

polgara wrote: »

Yes in principle TUPE would apply - you would need to transfer them in, declare an ETO (economic, technical or organisational reason) and then consult with all the staff member AND the other cleaning staff about a restructure/redundancy.

It sounds as though you are in an 'in-sourcing' situation, in which case TUPE may indeed apply. You may have shot yourself in the foot by telling them that you were moving the work in house.

Why did you not terminate on the basis of poor service, if that was the real reason?

Whether you can now extract yourself from this may depend on what exactly you said.

chrissimpson22

TBagpuss wrote: »

It sounds as though you are in an 'in-sourcing' situation, in which case TUPE may indeed apply. You may have shot yourself in the foot by telling them that you were moving the work in house.

Why did you not terminate on the basis of poor service, if that was the real reason?

Whether you can now extract yourself from this may depend on what exactly you said.

Thanks Bagpuss, apologies thats probably just they way i've gone about wording the post, that wasn't the MAIN reason for it, and i wasn't fully aware of the service issue(s) until after i'd terminated.

Thanks so far for everyone's input - varied responses though so who's 'right'!?!

Fluff15

chrissimpson22 wrote: »

Thanks Bagpuss, apologies thats probably just they way i've gone about wording the post, that wasn't the MAIN reason for it, and i wasn't fully aware of the service issue(s) until after i'd terminated.

Thanks so far for everyone's input - varied responses though so who's 'right'!?!

As long as you are distributing the cleaning within the office - ie everybody is doing their own desk, but they're also doing their own job, then TUPE does not apply. If you have somebody solely within the company doing all the cleaning then TUPE does apply.

The onus would be on them to take you to court if they felt you were employing just one person to do it. But since the task of cleaning is being completely fragmented, there is no longer a 'role' for a cleaner.

Takeaway_Addict

How long has the cleaner been working for the contractor for?

chrissimpson22

Takeaway_Addict wrote: »

How long has the cleaner been working for the contractor for?

thanks Fluff - thats the impression i've gotten.

Takeaway addict - she's been with them since april 2014 so not even eligible for worrying about redundancy etc.!
If they'd no longer be able to employ her having lost our contract they'd be free i believe to terminate her employment

Takeaway_Addict

chrissimpson22 wrote: »

thanks Fluff - thats the impression i've gotten.

Takeaway addict - she's been with them since april 2014 so not even eligible for worrying about redundancy etc.!
If they'd no longer be able to employ her having lost our contract they'd be free i believe to terminate her employment

Exactly.....