What Is TUPE and How Does It Affect Cleaning Contracts?
TUPE is an employee protection law in the UK, aiming to protect employees in the event of a change of employer. You may hear TUPE when you’re in the process of transitioning the cleaning service in your premises from one cleaning company to another due to service inconsistency and sub-standard cleaning provided by the former. You may ask what TUPE is, how it works and who’s going to do the paperwork.
In this article, we will explore TUPE in the commercial cleaning industry and answer all your questions.
What is TUPE?
TUPE, which stands for Transfer of Undertakings Protection of Employment, is a regulation in the UK to protect employees. TUPE is manditory and apply to all employees in the UK, regardless of the business, when:
- The business is sold and taken over by a new employer.
- The service provision changes
In these scenarios, the employee contract is protected by TUPE, and the new employer should transfer the employee’s contract over when buying a business or transitioning services.
Where TUPE Doesn’t Apply?
There are certain scenarios where TUPE doesn’t apply. The UK government website has provided ample resources and scenarios regarding TUPE.
Here’s a simple version with examples where TUPE doesn’t apply:
- When a business decides to change its supplier of goods. For example, a restaurant finds a new food supplier. In this case, the previous supplier is not protected under TUPE.
- If the employee or the contract is on a one-off or short-term basis. For example, temporary construction site workers are not protected under TUPE if the employer decides to switch to another construction company.
- If the nature of the service changes during the transition. For example, a clinic replaced general cleaning with specialised disinfection and fogging, and the current cleaner is not able to undertake such tasks.
What is Transferred Under TUPE?
When an employee is transferred under TUPE, the employee’s employment contract is transferred as well. Therefore, everything stated in the contract will remain intact and transferred to the new employer.
These may include:
- All terms and conditions
- Number of working hours and days
- Holiday entitlement
- Salary entitlement
Does TUPE Apply to Cleaning Contracts?
In almost all cases, TUPE applies to cleaning contracts. Therefore, when the cleaning company changes, the cleaner will be transferred to the new cleaning company.
However, there are certain cases where cleaners aren’t protected under TUPE:
- If the former cleaning company didn’t have a dedicated team cleaning the client site. If a new cleaner is sent for each cleaning session, TUPE doesn’t apply.
- If the cleaner’s work at the client site is less than 50% of their entire work, TUPE may not apply. This is referred to as the 50% TUPE rule.
How Long Does TUPE Protect an Employee?
TUPE protection doesn’t have a time limit and always applies regardless of how long the employee has been working or how many times they have been transferred under TUPE.
Cleaning Contract TUPE Transfer & Process
When transferring commercial cleaning services or outsourcing your current in-house cleaning service to a commercial cleaning company, TUPE applies.
What follows is the process of TUPE transfer and potential problems that may arise during the different stages of the transition.
Who Should Handle The TUPE Transfer?
Usually, the very first question you ask about TUPE transfers is, “Who is handling the process?”. TUPE transfer is handled by the new cleaning company.
They will contact the incumbent cleaning company to ask for TUPE information. They will also consult and inform the cleaner about the transfer and how it may affect their work.
However, if you are transitioning from in-house cleaning to commercial cleaning service, your cleaner is still covered under TUPE. Therefore, you should provide TUPE information to the new cleaning company and cooperate with them until the contract transfer is completed.
How Does TUPE Transfer Work for Cleaning Contracts?
When you, as a client, sign a new cleaning contract, service transition starts. During this process, the new cleaning company will reach out to the incumbent company to ask for the cleaner’s information to transfer them under TUPE.
The former cleaning company should provide the cleaners’ up-to-date information and contract at least 28 days before the contract start date. This is usually referred to as the 28-day rule for TUPE.
During this period, the cleaner or their representative (either a person or a union) should be informed. The new cleaning company will contact the cleaner and will inform them of the transfer.
Then, the new cleaning company will draw up a contract, exactly similar to the old one, for the cleaner to sign. This marks the end of the TUPE transfer, and the cleaner is now an employee of the new cleaning company.
Can The New Employer Refuse TUPE?
No. The new employer (new cleaning company) can not refuse the TUPE when it applies. TUPE transfer is not optional. It automatically transfers employees and their contracts.
Can The Cleaner’s Contract Change After TUPE?
No. Neither the former nor the new employer can change the terms of the cleaner’s contract because of the TUPE transfer. Changes should be justified by Economic, Technical or Organisational reasons (a.k.a. ETO).
Any change after the TUPE transfer should be accompanied by the cleaner’s confirmation, even if the change is positive (e.g. increase in salary or holiday entitlement).
Can The Cleaner Object to The TUPE Transfer?
Yes. The cleaner can refuse the TUPE transfer. However, this will terminate their contract. Therefore, while they can refuse TUPE, they will be made redundant.
Redundancy before the transfer, when the cleaner refuses TUPE transfer, is considered fair dismissal, meaning the cleaner can’t claim they were made redundant unfairly.
What if The Client Doesn’t Want to Transfer The Cleaner?
The TUPE transfer is not optional. Therefore, if the client or the new cleaning company refuse to transfer the cleaner, it may result in unfair dismissal, which has legal consequences.
In some cases, the client doesn’t want the cleaner to TUPE when they transition the service to a new cleaning company. This may be due to performance or other issues that may affect the cleaning service standards.
In this case, the client should discuss the issue with the new cleaning company. Then, the new cleaning company will first monitor the cleaner’s performance and provide training. If the performance remains substandard, the cleaning company will follow their disciplinary procedures.
Also, in certain cases, the cleaning company can redeploy the cleaner to another site with similar working hours and days, and send a new, competent cleaner to the client’s site.
Looking for a Cleaning Service With Easy TUPE Transfer?
Transferring cleaning service to a better commercial cleaning company is difficult. But when you partner with us, we will handle everything, including all paperwork, communications and consultation for transferring TUPE.
If you’re looking for a new cleaning company in London, we offer you a free quote. Our quote is valid for up to 12 months without obligation or hidden fees. You have plenty of time to plan ahead, explore other options and make the right decision.
Conclusion
TUPE is an essential employee protection law in the UK employment framework, particularly relevant in the commercial cleaning industry, where service transitions are common and TUPE is mandatory. TUPE ensures continuity and fairness for employees by safeguarding their existing employment terms when a contract or service changes hands.
While TUPE may initially seem complex, especially for clients unfamiliar with the legal landscape, understanding its principles is essential to avoid legal pitfalls and to foster a smooth, compliant transition. From transferring employee contracts unchanged to managing communication between outgoing and incoming cleaning providers, each step in the TUPE process requires cooperation, transparency and due diligence.
Importantly, neither clients nor cleaning companies can opt out of TUPE when it applies, and failure to adhere to its requirements can lead to claims of unfair dismissal or other legal consequences. Clients concerned about performance should work closely with their new provider, who will take responsibility for managing the employee post-transfer, including support, training and, if necessary, redeployment.
