TUPE - taking on existing staff - General Cleaning Issues

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TUPE - taking on existing staff

Posted by Musicman (Musicman), 23 December 2003

Thanks for the invite to talk about TUPE Mike (Chicken & Egg). I thought I'd start a new topic with it as it is so involved.

TUPE - Transfer of Undertakings (Protection of Employment) Regulations 1981, and incorporated into UK Law through the Trade Union Reform and Employment Rights Act 1993 (I think) is relevant to all of us involved in non-domestic cleaning where a cleaning contract changes hands either between two contractors, or from an in-house cleaning operation to contracted out, or from contracted out to in-house.

The legislation is there to protect the employment rights of the cleaning staff involved. (It also applies to other allied businesses - security, catering etc as well as other industries.)

If anyone breaches the TUPE Regulations they could well end up in front of an Employment Tribunal facing a maximum fine of £25k per cleaner (or so I am advised).

For more detailed information on TUPE I suggest that members look it up on the net or ask specific questions on here.

OK background over, when I talk to prospective clients experiencing difficulties with their cleaning contract they can be broken down into two distinct areas - problems with the cleaners, or problems with the support from the contractor.

If it is the latter, assuming that the cleaners transfer, there should not be too many problems if the new contractor does their side of the business properly so TUPE can be beneficial in having a cleaning team in place.

However, if the problems lie with the cleaners (which in turn reflects upon the contractor), it can be difficult to enlighten the prospective client of the benefits of TUPE, the comments often being along the lines of 'If I can't change the cleaners what is the point of changing the contract?'

Without giving away too much of how I handle this I explain that the transfer is the beginning of the story rather than the end. If, after all of the positive things that we do to turn the staff around, the cleaners do not respond, we go down the disciplinary route.

This is where working on behalf a good contractor pays dividends as we have turned many sites round from being poorly cleaned to being very well cleaned - whilst retaining the same cleaners. On other sites we have had to replace almost all of the cleaners as a 'culture of poor working' had been allowed to establish itself beforehand.

In summary, the two extremes of TUPE can either let you inherit a great cleaning team, or a mountain of problems.

This is a vast and extremely complex area and I hope that I have been able to help and keep it as brief as possible.

I will personally seek out and shoot anyone who brings up ETO!

Regards

Musicman

Posted by Fox (Fox), 23 December 2003

As an employer I find TUPE a mine field. Some Companies don't just change their cleaning contractors because of bad management or poor cleaning staff but also as a pricing issue.

When this happens TUPE regulations really get up my nose! I loath letting other contractors have good staff that I have spent time, money and effort on, training and building a good working relationship.

However if I haven't got another site suitable to place them on then of course I would rather see them in work.

I also find it very difficult to get information out of the previous cleaning company on a new contract. It's all very well saying they have to by law but how feasible would it be to implement it? After all when awarded a new contract I am working to a time limit to staff it and get started.

Fox

Posted by petra (petra), 26 December 2003

I agree with you fox, what a mine field this can be and will post more later, but being christmas i did promise the family no cleaning talk.......
Petra

Posted by Mike_Boxall (Mike_Boxall), 29 December 2003

I have to admit that I know very little about TUPE.

Am I right in thinking then that the new contractor is obliged to keep the same staff if the staff decide they want to stay?

If so are they obliged to pay them at the same rate?

Regards

Mike

Posted by Fox (Fox), 29 December 2003

Hi Mike

Yes contractors are obliged to keep current cleaning staff if they want to stay, they also have to abide by that employees contract of employment, same hours, pay, holidays etc.

So when quoting for a contract a clause should be put in the quotation stating that there is no provision for TUPE, so that the pricing structure can be adjusted on that basis.

If a contract has 5 cleaners and the new contractor wants to cut it down to 4 but they all want to stay on it's also the new contractors responsibility to pay any redundancy due.

So basically all previous situations, good or bad, get transfered with the employee.

Posted by STEVE71163 (Steve Lowe), 29 December 2003

Has anyone got any web addresses where i can get the full information on TUPE Huh

Steve

Posted by petra (petra), 30 December 2003

http://www.acas.org.uk/acas_publication_scheme/pdfs/Research/I&Coct03.pdf
If you realy want some hard read then this is it, good luck.
Petra

Posted by Musicman (Musicman), 30 December 2003

At the risk of causing offence (sorry Petra) there are many better sources of advice and information about TUPE readily available on the 'net.

Go to a search engine and type in TUPE, or Transfer of Undertakings... and it should throw up information from government organisations such as the DTI through to advice from various firms of solicitors.

In the link recommended TUPE is referred to once out of the 86 pages.

Mike, when transferring staff they are entitled to terms and conditions 'not less favourable' than those that they currently enjoy. This means that wage rates, holiday entitlements etc can be increased or enhanced to the benefit of the cleaners but cannot be reduced.

Once the cleaners have been transferred the employer CAN vary the terms of a contract as they can with any employee, but a period of negotiation (fully documented) must have been adhered to - and cannot be seen to be linked to the transfer. I believe that a period of 6 months following the contract change is the minimum recommended length of time.

Any alteration to the terms and conditions that is linked to the transfer can be interpreted as constructive dismissal and pursued at an Employment Tribunal.

Regards

Musicman

Posted by petra (petra), 1 January 2004

No offence taken, just thought I would chuck in a real mind blowing bit of reading, but if i need info, I usualy just type it in a search engine and always find the help I need.
Petra

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