Screen shot of ACAS website regarding TUPE which clearly states “an employees rights when: a service transfers to a new provider, for example when another company takes over the contract for office cleaning“.
More information regarding TUPE regulations can be found through the ACAS website and this link. If the link no longer
works, then search for ”ACAS TUPE GUIDANCE”
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Thinking of changing cleaning contractor?
Is there someone already employed, specifically to deliver the cleaning to your business (if you receive the same
member of staff on most days then it’s pretty safe to say that they are)?
Then this is classed as a “Service Provision Change” and The “Transfer of Undertakings Transfer of Employment (TUPE)”
rights 2006 / 2012 WILL apply. There are those who will argue about percentages of work and splits etc. and TUPE
doesn’t apply if their employment isn’t 100% on that site. THEY ARE WRONG, TUPE ALWAYS APPLIES IN SOME FORM OR
ANOTHER. CONSULTATION MUST TAKE PLACE AND NO CHANGES CAN TAKE PLACE UNTIL DAY TWO OF THE NEW EMPLOYMENT AT THE EARLIEST.
Anyone employed to deliver a service to a business whether they are employed directly by said business or by a contractor,
the ultimate and final legal responsibility for ensuring TUPE is adhered to is that of the business where they work. Not the
contractor. Any good contractor will manage all of this for you so don’t panic. All you need to do is ensure you’re
working with a contractor that knows what they are doing.
Where TUPE applies
Employees transfer to the new employer on their existing terms and conditions of employment with all their existing
employment rights intact (although there are special provisions for occupational pension rights). The new employer
inherits the old employer’s duties and liabilities in respect of the employees who have transferred.
The old employer (the transferor)
The transferor must inform representatives of the employees affected by the transfer (including those who are to be
retained) before the transfer takes place and consult with them about any plans or proposals that are envisaged as a
consequence of the transfer. Where there is a recognised trade union, the representatives must be representatives from
that union. Otherwise, they can be an existing representative body (such as a staff council) or representatives specifically
elected for the purpose. Failure to do this can result in a complaint to an employment tribunal, which can award the
equivalent of 13 weeks’ pay to each of the affected employees.
The transferee may be held jointly liable for a failure by the transferor to comply with its obligations to inform and consult.
Employee representatives who are dismissed or victimised as a result of their role in the consultation process may also
bring a claim before an employment tribunal. The transferor must also provide the transferee with certain information
about the transferring employees; otherwise the transferee can bring a claim before an employment tribunal. The
minimum compensation award is £500 per employee in respect of whom the transferor has failed to comply. This is
referred to as a “Statement of Measures” which must be issued to the transferor, detailing any changes that can be
expected as a result of the transfer that they should make their outgoing staff aware of (usually changes to date of payment, pension arrangements etc.)
The new employer (the transferee).
The duty to inform and, if necessary, consult also applies to the transferee in respect of their own employees, who may be
affected by the transfer. For example, it may be necessary for the transferee to restructure in order to integrate the
transferred employees into their existing workforce. In practice, the transferee will have to deal with a range of people
issues. These can include the need to accommodate different terms and conditions of employment, deal with duplication
of job roles and respond to claims from ex-employees who have been dismissed or unfairly treated by the transferor.
It is much easier to deal with such issues if they have been identified in advance as part of a wide ranging due diligence
exercise, which covers the transferee’s inherited employment obligations and liabilities as well as the financial aspects of
the transfer. It is common practice in a due diligence exercise to obtain a warranty from the transferor that the information
they have provided to the transferee is correct and complete. The warranty is then supported by an indemnity clause,
which allows the transferee to make a claim against the transferor if any of the information is incorrect or incomplete.
Employers who think a transaction they are involved in might be a TUPE transfer should always seek specialist legal advice.
RGS Cleaning Ltd have spent a great many years and much expense on understanding TUPE so that these regulations are never a
worry for a customer, staff or contractor. You can rest assured that we will do everything right to avoid you or us being
exposed to any risks as a result of a possible transfer.