How does TUPE apply to the commercial cleaning industry?

Commercial cleaning contracts do not have to change just because ownership has.

TUPE (the Transfer of Undertakings (Protection of Employment)) regulations were brought in to help protect the employee’s rights when a contract transfers from one company to another. These regulations help to enable an easy transition for both the cleaner and the customer, almost as if the cleaners’ employment contract has originally been made with the new employer/contractor.

Though not exclusive to the commercial cleaning sector, the TUPE regulations must be adhered to when a company decides to change cleaning company, outsource their cleaning or bring the cleaning back in-house. They are designed to protect employee’s rights, pay rates and hours, Ts and Cs and continuous service when an employer changes in a service contract.

TUPE regulations not only protect the employee but can also benefit them. Firstly, the new contractor is legally obliged to offer the cleaner a position under the same Ts and Cs as the previous company. With any change of contractor, focus on assessing the motivation and training of the cleaners and on demonstrating a clear and effective management process is imperative, as the people conducting the cleaning are the most important asset in any service provision.

The regulations protect the employee, making it automatically deemed unfair for the transferee or transferor to dismiss an employee with more than 2 years’ service, where the sole reason for the dismissal is the transfer itself or a reason connected to the transfer 

Their continuity of service and any other rights are all preserved if they transfer to the new contractor. Once the employees are transferred over, they must be provided with written notifications of their new employer, their start date with this employer and their date of continuous service.

For the customer, the transfer of a contract from one company to the other will result in a new contractor taking on the management of the existing cleaners. A new contractor often implements new skills and quality procedures and may re-train the cleaners in a different and more effective way. Therefore, the effect of the new contractor may make it seem as though the cleaners are brand new!

Contractors must comply with the current TUPE legislation. The earlier that the current cleaning staff is consulted the better, in order to clearly establish who will be transferring across. Holiday entitlement and rate of pay must remain the same, which means that the cleaning company has little flexibility when pricing the contract.

It is important to note that in circumstances where the cleaner is currently employed directly by the customer (‘in-house’ cleaner) the same rules apply, and the new contractor is obliged to offer the cleaner under the same Ts and Cs.

In summary, a change in ownership does not necessarily equal a change in cleaning staff. However, if a client does request a change in cleaning personal when you take on the contract, you will have to follow a ‘Some Other Substantial Reason (SOSR) 3rd Party Pressure’ to potentially change the employees location of work.

TUPE regulations offer employee protection and clearer guidelines for the new employer to adhere to. Ensure your employees are looked after by doing your research into TUPE regulations and contact us at NORI HR and Employment Law for any further HR or Employment Law questions.