Do Staff Transfer When You Change Cleaning Contractors?

Nina manages facilities for a group of offices in Manchester. Her current cleaning provider has become unreliable, so she wants to move the contract to a new company at the end of the month.

The new provider is happy to take over the cleaning work, but then someone asks the question that often catches businesses out: do the cleaners transfer with the contract?

If you're changing an outsourced cleaning provider, TUPE can affect your timing, your costs and who carries employment risk. The good news is that, with the right checks and contract wording, this doesn't have to derail the change.

Does TUPE Apply When You Change Cleaning Contractors?

Yes, TUPE can apply when you change cleaning contractors if the change is a service provision change and the cleaning work stays fundamentally the same.

TUPE is the Transfer of Undertakings (Protection of Employment) Regulations 2006. In cleaning contracts, TUPE often comes up when you:

• Outsource cleaning for the first time to a contractor
• Bring cleaning services back in-house
• Move the cleaning contract from one contractor to another

The last point is the classic retendering scenario. If the same client still needs the same cleaning services at the same premises, the employees assigned to that contract may automatically move from the outgoing provider to the incoming provider.

This is why a cleaning services agreement can be more than a simple supplier switch. You're not just changing who sends the invoice. You may also be changing who employs the cleaners attached to that work.

What Makes A Cleaning Contract Change A TUPE Transfer?

It depends on whether there's an organised grouping of employees whose main purpose is carrying out the cleaning work for your business or site.

For a service provision change under TUPE, you usually look at these questions:

• Is there a clearly organised team or group working on the cleaning contract?
• Is that group's main purpose to clean for your business, building or site?
• Will the incoming provider carry out activities that are fundamentally the same?
• Is the client effectively the same before and after the change?
• Is the work ongoing, rather than a one-off event or very short-term task?

Say Mike runs a cleaning business. His team cleans a shopping centre every evening. Four cleaners spend nearly all their working time on that site, use site-specific keys and follow a rota built around that contract. If the shopping centre appoints a new cleaning company to do the same evening cleaning, TUPE is likely to be on the table.

On the other hand, TUPE may be less clear if the outgoing provider sends different cleaners every week from a general pool, no one is mainly assigned to your site, or the new contract is genuinely different. For example, if the old provider did daily internal cleaning and the new provider only does monthly specialist window cleaning, the activities may not be fundamentally the same.

Common Cleaning Examples Where TUPE May Apply

• A landlord changes the contractor that cleans the common areas of a commercial building
• A school, gym, restaurant group or office changes its outsourced cleaning provider
• A facilities management business loses or wins a cleaning package at a site
• A client decides to bring cleaning staff in-house after years of outsourcing

Cleaning work is often regular, location-based and performed by a small group of recurring staff. That's why TUPE risk is common in this industry.

Which Employees Transfer With The Cleaning Contract?

Employees usually transfer if they're assigned to the organised grouping that's moving to the new provider.

This isn't always as simple as asking whose name appears on the rota. You may need to look at the reality of the working arrangements, including:

• How much of the employee's working time is spent on the cleaning contract
• Whether the employee is part of a team dedicated to that site or client
• How the employee's duties are organised in practice
• Whether the employee covers multiple sites or mainly one contract
• Whether the arrangement is temporary or permanent

If a cleaner spends 90% of their time at your site, they're more likely to be assigned to that contract. If they only cover occasional absences across many sites, the position may be different.

When TUPE applies, the transferring employees move automatically to the incoming provider on their existing employment terms. Their continuity of employment is preserved. That means the new provider generally inherits their pay, hours, holiday entitlement, length of service, contractual benefits and relevant employment liabilities.

This can be a surprise for incoming cleaning contractors who price the job based only on labour hours and materials. If the transferring staff have higher pay rates, long service or contractual benefits, the contract may be less profitable than expected.

What Employee Information Do You Need Before The Transfer?

You need enough employee information to assess who may transfer, what they cost and what liabilities may come with them.

Under TUPE, the outgoing employer must give employee liability information to the incoming employer at least 28 days before the transfer. This information should include details such as:

• The identity and age of employees who will transfer
• Their written employment particulars, including pay, hours and holiday terms
• Information about disciplinary action in the last 2 years
• Information about grievances raised in the last 2 years
• Any legal claims brought by employees in the last 2 years
• Any potential legal claims the outgoing employer has reasonable grounds to believe may be brought
• Details of any collective agreements that apply

In practice, 28 days is often too late to properly price and plan a cleaning handover. If you're tendering for a cleaning contract, ask for anonymised employee information early in the process, then fuller information once the appointment is more certain.

If you're the client changing cleaning provider, you can help the process by requiring bidders to ask TUPE questions upfront. This helps you compare bids properly. A cheap bid may not be cheap if it ignores transferring employees.

Be Careful With Employee Data

Employee information can include personal data, so UK GDPR and the Data Protection Act 2018 still matter. Share only what is needed at each stage, keep it secure and use anonymised information where possible during tendering.

You can usually share more detailed employee liability information when there's a clear TUPE process and a proper business need. Even then, access should be limited to the people who need it for the transfer.

Do You Need To Consult Staff Before Changing Cleaning Provider?

Yes, if TUPE applies, affected employees must be informed and, where measures are proposed, consulted before the transfer.

This duty sits mainly with the outgoing employer, but the incoming provider also has a key role because it must tell the outgoing employer about any measures it plans to take in relation to transferring employees. Measures could include changes to reporting lines, work location, rota systems, payroll arrangements, uniforms or benefits.

There's no fixed minimum consultation period under TUPE. The consultation must happen long enough before the transfer to be meaningful. Leaving it until the day before handover is rarely sensible.

You may need to inform and consult with:

• Recognised trade union representatives, if there's a recognised union
• Elected employee representatives, where required
• Employees directly, in some smaller business situations where no representatives are already in place

Since 1 July 2024, direct consultation is available in more small transfer situations where there are no existing employee representatives. This can apply where your business has fewer than 50 employees, or where the proposed transfer involves fewer than 10 employees. If you're relying on this route, check the facts carefully because getting consultation wrong can be costly.

A failure to properly inform and consult can lead to compensation of up to 13 weeks' uncapped pay for each affected employee. That risk can fall on the outgoing employer, the incoming employer, or both, depending on what happened and what the contract says.

Can You Change Terms Or Make Redundancies After A TUPE Transfer?

Sometimes, but you need to be very careful because changes made because of the transfer can be invalid and dismissals can trigger claims.

Under TUPE, employees transfer on their existing terms. You generally can't change terms simply because the new provider wants all staff on its standard employment contracts or because the job was priced too low.

Changes may be possible where there's an economic, technical or organisational reason involving changes in the workforce. This is often called an ETO reason. Examples may include a genuine reduction in headcount, a workplace relocation, or a structural reorganisation affecting roles.

Even then, you still need to follow a fair process. For redundancies, that usually means consultation, fair selection criteria, exploring alternatives and giving proper notice. Statutory redundancy pay may apply where employees have at least 2 years' continuous service. The statutory cap on a week's pay usually changes each April, so check the current government figure before calculating payments.

From an incoming contractor's perspective, don't assume you can accept the staff on Monday and change their contracts on Tuesday. If you need operational changes, build them into your TUPE plan and get advice before you communicate them.

How Should Your Cleaning Contract Allocate TUPE Risk?

Your cleaning contract should clearly say who is responsible for employment liabilities before, during and after the transfer.

This is where many cleaning contract changes get messy. The client wants a smooth switch. The outgoing provider may not want ongoing responsibility. The incoming provider doesn't want unknown staff liabilities. A well-drafted contract helps turn that uncertainty into clear commercial risk allocation.

If You're The Client Changing Providers

Your contract should help you manage the handover without becoming the referee in an employment dispute. Consider clauses covering:

• The outgoing provider's duty to supply accurate employee information
• The outgoing provider's duty to cooperate with consultation and handover
• Indemnities for pre-transfer employment liabilities
• Confidentiality and data protection around employee information
• Exit obligations when the contract ends or is retendered again
• What happens if the incoming provider refuses to accept transferring staff

You may also want tender documents that ask bidders to price on a TUPE-aware basis. If one bidder assumes no employees transfer and another assumes four employees transfer, you're not comparing like with like.

If You're The Incoming Cleaning Contractor

You should avoid signing the service agreement until you've asked the right TUPE questions. Focus on:

• How many employees may transfer
• Their pay, hours, holiday and length of service
• Any sick leave, grievances, disciplinary issues or claims
• Whether any employees are on maternity leave, long-term sickness absence or other family leave
• Whether pension or auto-enrolment arrangements need to be set up
• Whether the outgoing provider will indemnify you for pre-transfer liabilities

Templates often miss the practical detail that matters in a TUPE cleaning contract change. The contract wording works best when it matches the site, the staff profile and the handover plan.

If You're The Outgoing Cleaning Contractor

You should protect your business by giving accurate information on time and keeping a paper trail. Your contract should make clear when your responsibility ends and what the incoming provider must take on after transfer.

If the client is ending the contract because of service issues, be especially careful with communications. A dispute about performance can quickly become a dispute about staff, handover duties and who pays for claims.

What Practical Steps Should You Take Before The Handover?

You should map the TUPE risk early, then build the handover around the employees, documents and timing.

A sensible process might look like this:

1. Identify the current cleaning arrangements. Work out who does the cleaning, when they do it and whether there's a dedicated team.
2. Check whether the activities will stay the same. Compare the old and new cleaning specifications carefully.
3. Ask for employee information early. Start with anonymised information during tendering, then request employee liability information once the transfer is clearer.
4. Plan consultation. Decide who will inform and consult affected employees, what measures are proposed and when communications will happen.
5. Review the contract wording. Make sure the service agreement deals with TUPE warranties, indemnities, data protection, cooperation and exit duties.
6. Price the contract properly. Factor in pay rates, holiday, training, supervision, uniforms, pension duties and possible liabilities.
7. Document the handover. Keep written records of information exchanged, decisions made and consultation steps taken.

For many businesses, the most useful step is simply asking the TUPE question early. Once you've signed the new cleaning contract and announced the change, your options may be narrower.

Key Takeaways

• TUPE can apply when you change outsourced cleaning provider, bring cleaning in-house or outsource cleaning for the first time.
• The key question is whether an organised group of employees is mainly assigned to the cleaning work that's transferring.
• The outgoing employer must provide employee liability information at least 28 days before the transfer, but you should ask for information earlier where possible.
• Affected employees must be informed and, where measures are proposed, consulted before the transfer.
• Your cleaning contract should clearly allocate responsibility for employee liabilities, consultation failures and inaccurate information.
• Getting TUPE advice before the handover can help you price the contract properly and avoid disputes later.

If you'd like help with reviewing a cleaning services agreement, working out whether TUPE applies, handling employee information and consultation, or allocating employment risks in your contract, you can reach us at 08081347754 or team@sprintlaw.co.uk for a free, no-obligations chat.