TUPE AND SCHOOL CLEANING CONTRACTS
WHAT IS TUPE?
The Transfer of Undertakings (Protection of Employment) Regulations 2006 is designed to protect employees’ terms and conditions of employment when a contract is transferred from one company to another. When the contract is handed over to the new company, the employees become automatic employees of that new company, with the same rate of pay and on the same terms and conditions. The regulations were originally introduced in 1981 and were subsequently replaced by TUPE 2006 on April 6th 2006 and then updated again in 2014. Click here for more information on the TUPE regulations:
DOES TUPE APPLY TO SCHOOL CLEANING CONTRACTS?
If the cleaning staff are employed mainly or wholly at that individual school contract then they have a legal right to remain in their current role, even when the cleaning contractor changes, and even if the cleaning is brought in house by the school itself.
As the incoming employer, or ‘transferee’, it is your responsibility to adhere to the TUPE regulations by following these four stages:
At this stage, you should be in the process of preparing your final bid. Please note that the outgoing employer may not be able to provide employers liability information to you at this stage. This is because they have a duty to protect their employees’ data and confidential information. However, discussing with the school the number of hours of cleaning they receive a week will help you to identify potential employment liabilities.
- Identify who should be responsible for managing the TUPE process within your company.
- This person needs to identify what are the actual and potential employment liabilities.
- More information on employment liability information is below.
- Create a channel of communication for employee consultation with the transferring staff and the outgoing employer.
At this stage, you may have been awarded the school cleaning contract and should have appointed an appropriate person within your cleaning company to be responsible for managing the TUPE process.
- Meet/speak to the outgoing employer to agree on the way forward, identify which employees are transferring and the transfer date.
- You should engage with transferring employees to inform and consult with them, so they are able to ask any questions or air their concerns regarding the transfer.
- Request ELI and due diligence from the outgoing employer. (this is discussed in more detail at the end of this article)
- Identify any measures which may need to be taken in respect of transferring employees (if any).
- Inform the affected staff and their representatives about the transfer so they understand what is happening and why particularly if they will be working with new employees.
- Request to meet with the new employees before the transfer. You should aim to meet with them three times before the transfer.
- In some rare cases, outgoing employers do not allow for this so you should try to hold meetings in a place close to the school before or after their shift. Invite the staff and the outgoing employer to these meetings, so everyone has a chance to consult with you.
- It is also helpful to check that their terms and conditions correspond to the information provided by the outgoing employer at this stage. Any discrepancies can be investigated, and differences resolved at an early stage thus avoiding misunderstanding and disappointment which may lead to problems later.
- Contact the client in situations where the outgoing employer refuses access to the affected employees before the transfer. If you make this known to the client, they are generally able to help as there is often a clause in their contract which requires the outgoing employer to allow access to the affected employees in TUPE situations.
- Draw up plans to integrate new staff, plan how the work will be carried out.
- Ensure that all cleaning equipment such as chemicals, machinery, eyewash stations etc have been set up and are ready and working for the day of the transfer.
- Use your standard company induction to integrate new employees, make sure they know who their line manager is so they are able to ask any questions and you can provide excellent support.
- Finally, ensure you are constantly providing the outgoing employer with information on the steps you are taking regarding the transfer and consult with them throughout the whole process.
At stage 3, you should have consulted with all transferring staff and listened to their concerns and hopes for the transfer. If any transferring staff have given recommendations of how you could improve their work-life then this is a good time to implement positive changes and welcome them to your team. You should have also informed the outgoing employer of the steps you are taking to integrate the staff into your company.
- On the day of the transfer, make sure management are present and ready to greet new employees, on this date, it is important you go over your usual induction process. Explain your company culture, explain how they will fit in, the training they will undertake etc.
- Use this date to maintain a strong focus on improving employee morale, you should have consulted with new employees beforehand to see if there is anything you can do to improve morale but this should be an ongoing process.
Stage 4 means the transfer has taken place, at this stage the employees should be settled into your company, understand your company policies, have a clear line of management that provide support and they should know their role and duties.
- Hold regular team meetings to discuss the work, audits and morale of staff.
- Listen to employee suggestions and consider holding discussions to generate ideas to improve processes. The discussion will also help identify and resolve problems before they escalate.
- Ensure line managers make reasonable allowances during periods of adjustment and inform clients of our processes.
Under the TUPE Regulations the outgoing employer must provide you with the following information:
- Identities of the transferring employees
- Age of the transferring employees
- Employment particulars of the transferring employees
- Active/live disciplinary and grievance records from the last two years of the transferring employees
- Any collective agreements which are in force
- Any outstanding claims the transferring employees have against the outgoing employer.
- The information must be accurate, up-to-date, and secure, and must be provided in not less than 28 days.
- In addition to ELI, incoming employers often carry out a more in-depth investigation of the business or contract by seeking additional information from the client or the outgoing employer about a transfer.
- Although this is not a requirement of the TUPE regulations, this is a legal process called due diligence. In a service provision transfer due diligence is used to assess risk, determine the level at which to put in a bid, identify employment costs and inherited liabilities, and decide whether the service can be performed with the monies available.
A common concern for potential buyers is that they are concerned about the ability to change or improve the cleaning standards due to the TUPE legislation. This is something we come across too often, however, the first thing to note is the low standard of cleaning is not always the fault of the staff. In 90% of cases, the fault lies with the current cleaning contractor, a lack of management presence, no supervision, no audits and incorrect cleaning chemicals/equipment being utilised can be to blame.
In these situations, the first focus should be on re-training and improving the training of the cleaning staff. Through a detailed, relevant and well-produced training programme, the contractor can improve the employees standard of work. Proper training, motivation and evaluation are crucial to achieving the high cleaning standards that you expect. You must be able to add value to the existing cleaning staff in order to raise the cleaning standards. This should be an ongoing process. Regular reviews of the cleaning operatives are essential to maintaining high standards of cleaning on any site.
TUPE is an important piece of legislation that you must adhere to, however, there may be occasions where a transfer may not be necessary. You should seek legal and HR advice to help you make this decision. If the standards are still poor after you have supported and re-trained the cleaning operative, you can implement and act upon your disciplinary procedures.
At GJ Commercial Cleaning we can handle TUPE transfers, if you are thinking of switching cleaning contractors then contact us today.