All Your TUPE Questions Answered

Wednesday 20th February 2013

Office Care have teamed up with Emma Cooper from our Employment Law Specialists Flint Bishop, to answer all your questions about TUPE…

What is TUPE?

TUPE is an abbreviation for the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246).  TUPE came into force on 06 April 2006.  TUPE regulates certain business transfers in England and Wales.  TUPE applies to “relevant transfers”.  This includes the following (subject to certain conditions): 

1.     The complete sale of a business that retains its identity (not a share sale); and 

2.     A change of service provider.  This includes a change of external provider, outsourcing certain parts of your business or indeed bringing certain parts back in house. 

What is the purpose of TUPE?

TUPE introduced the following concepts into UK employment law: 

1.     The automatic transfer principle: existing employees automatically transfer to the new business owner or provider, who inherits all rights, liabilities and obligations in relation to them.

2.     Protection for employees against dismissal in connection with the TUPE transfer.  Any such dismissal will be automatically unfair if the employee has the qualifying service for unfair dismissal.

3.     The obligation on the seller/outgoing provider and purchaser/incoming provider to inform and consult with representatives of affected        employees in certain circumstances.

4.     Any changes made to the employees’ contracts of employment due to a TUPE transfer (that don’t fall within the rather narrow exceptions of economical, technical or organisational reasons) will be void.

5.     Employees may refuse to transfer but this will then end their employment and they will have no right to compensation.

TUPE essentially provides protection for employees when either a business is sold or there is a change of service provider.  It essentially seeks to ensure that employees’ employment will be, so far as is possible, unaffected by a TUPE transfer.  This means that their contracts of employment will automatically transfer to the new employer and their employment will continue as before the transfer.

We use a managed service but the cleaner isn’t performing well, I have informed our account manager several times but nothing has happened. We are looking to change supplier but we do not want to keep the current cleaner, are they protected by TUPE and therefore we have to keep them onsite even though they are not turning up for work, when they do turn up they are late and are not performing?!?    

As you outsource the cleaning, you are not the employer.  The current service provider is the cleaner’s employer.  One of the main benefits of outsourcing is that you remove the ties of being an employer.  This issue relates more to the contract between you and your current provider.  This is called your service level agreement.  If your current service level agreement is drafted properly then it should allow for you (as the client) to stipulate to the current service provider the standards you expect from the service provided.  

Therefore if your current service level agreement is drafted well you should be able to enforce the agreement with your current provider and make them take action in relation to this “problem cleaner”.  If you decide that you still want to transfer supplier, then I would recommend that upon the transfer you ensure that the new service level agreement between you and the new provider provides clear service levels and gives you the right to request a change of cleaner.   Any such transfer between service providers would be a TUPE transfer.  Therefore, this employee would be protected by TUPE and would automatically transfer to the new provider.  However, provided you had such a clause in the service level agreement you would be able to take action with the provider (whether old or new) and stipulate who they send/do not send to do the cleaning on this contract. 

We have had trusted in-house cleaners for 10 years but we are out sourcing the cleaning to a managed company to remove the time and hassle involved with holiday cover, consumables etc. Will our current cleaners’ job be protected? 

Yes.  This sounds like it would be a TUPE transfer because you are outsourcing a certain identified function.  Therefore, all cleaners who work on the function that you are transferring (i.e. cleaning) will automatically transfer to the provider that you choose to outsource to.  All employees will be protected from dismissal provided they have the relevant service for unfair dismissal purposes, or having changes to their contracts of employment, unless they object to the transfer. 

We are changing cleaning supplier, whose role and responsibility is it to make sure the current staff are protected I don’t want a law suit against my company?  

This answer will depend on whether you are changing from one provider to another or whether you are outsourcing for the first time. 

If you are outsourcing for the first time, it is both your responsibility and the responsibility of the new provider.  After the transfer all rights, responsibilities and liabilities will transfer to the new provider.  However, there are certain processes that you must follow and certain information that you must provide to the new provider in order to discharge your obligations and protect your company. 

Essentially, I would advise that you communicate with the new provider about their plans for the employees once they take over the contract.  You may have an obligation to inform and consult with your employees if the new provider is proposing making any changes.  If you are in this situation, feel free to contact me for further confidential advice. 

If you are simply changing from one provider to another, there will be no obligations on you in relation to the providers’ employees.  You won’t have to take any steps in relation to them.  

When changing cleaning supplier (or changing from an in-house to a managed service), how do cleaners get informed about a transfer?  

This will depend on whether you are changing provider or outsourcing for the first time. If outsourcing for the first time, it is your responsibility to inform your employees about the transfer in the first instance. This is simply telling them about the transfer.  Confirming this to them in writing is always advisable.

You should also find out whether the new provider will be taking any “measures” (i.e. seeking to implement any changes to their terms of employment) after the transfer.  If so, you will have a duty to consult with affected employee representatives. If changing provider, there is no obligation on you. 

What if one of our current cleaners doesn’t want to transfer to the new company? 

If any current employees object to the transfer then they do not have to transfer. Instead their employment will be terminated at the date of the transfer and they won’t have any rights to compensation for the loss of their employment. 

Our in-house cleaner is not performing to the standards required but we don’t have an HR department. How do I go through the disciplinary stages? 

The process that you follow will depend on the circumstances.  It will depend on whether the employee is not able to do their role, and therefore this would be a capability matter, or whether the employee is able but unwilling to perform properly, when this may be a disciplinary matter.  

This is the type of advice that I give to my clients regularly.  Feel free to either contact me directly or take a look at the FB Support website to see how we could help you with all your employment law and HR support needs.

One of our cleaners has been off sick for 2 months, are they protected by TUPE?

 Yes.  All current employees are protected by TUPE.  Even though an employee may not have been at work for a long period of time, they will still be an employee and therefore will be protected by TUPE.  

The fact that this employee is off on long term sick is something that you will have to disclose to the new provider as a part of the information that you must disclose to them.  This is called employee liability information and should be provided to the new provider 14 days before the transfer. 

If your looking for a new commercial cleaning company have a look through the rest of our website and click here. Or call Nicky or Hayley on 01332 332331.

If you want any further advice on any employment law or HR related issues feel free to contact Emma on 01332 226 149 for a confidential chat.  If you would like to see how FB Support can help you and your business, or if you would like regular updates as well as instant access to over 70 business critical documents simply sign up for our FB Support service online click here.