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TUPE: Changing Cleaning Provider – Part 2

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TUPE Consultation September 2013 Update:

As mentioned in our previous posting, back in January 2013 the Government started a consultation process to look at proposed amendments to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE regulations). The Government has now released its response to this consultation.

The major change heralded by the Government, namely the repeal of the “service provision change” (SPC) provisions in TUPE , proved to be most controversial. An SPC is where activities for a client are contracted out, transferred to a new contractor or are brought back in house. The first and second examples of which, are perhaps the most common place situations involving contract cleaning services.  The majority of respondents to the consultation were opposed to such a change and the Government has now confirmed that this change will not now be taking place.

SPC provisions will be amended however to reflect case law and this will be something of a simplification, meaning that the activities or service (e.g. Cleaning services) need to be “fundamentally or essentially the same” as they were before the provider was changed, which seems to be a common sense approach.

The biggest change that we will all need to be practically aware of is that TUPE information will now have to be provided 28 days before a transfer rather than 14. Substantial costs are involved if there is a failure to inform and consult those affected, the starting point for which is 13 weeks pay, therefore those dealing with TUPE and the transfer of service contracts need to be alert to the fact that they will need to get this information out earlier than before.

Another piece of case law that will be included into the TUPE regulations is the Alemmo Herron case. This will amend TUPE to provide expressly for a “static” approach to the transfer of terms derived from collective agreements made with the previous employer. In other words transferred employees won’t be entitled to any subsequent pay rise arising from a collective agreement made with the previous employer.

The intention is also to amend TUPE so that if the location of the workforce changes then this can be seen as being within the scope of an economic, technical or organisational reason (ETO reason). This will prevent genuine place of work redundancies from being viewed as automatically unfair.

Another big clarification is that a year after any transfer, terms and conditions can be re-negotiated without it being a breach of the regulations. Obviously, in line with the spirit of the regulations, any new terms and conditions must, on balance, be no less advantageous to the employees but it does mean that companies can have a degree of standardisation in their terms and conditions of employment, across their workforce, within a reasonable timescale.

These amendments should have no detrimental effect on the transferring of cleaning services contracts. In the main they should make the process more straight forward. However, the requirement to provide TUPE information 28 days prior to the transfer does underline the need for buyers of contracted services, such as cleaning, to ensure that their service provision contract contains a requirement for their current contractor to provide TUPE information efficiently and that notice periods and their buying regime fit with this time frame.

It is the stated intention of the Government that these new Regulations will go before Parliament in December 2013. The suggestion is that implementation would be in January 2014 and transitional provisions are to be expected. We will post further updates on the final recommendations and any further changes at the time.

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TUPE: Changing Cleaning Provider – Part 1

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Introduction: TUPE and all that

Ideal Cleaning Services Ltd. established in 1946 was one of the first companies to offer contract cleaning services in the UK, and throughout the years they have strived to keep ahead of the game by maintaining its principles of customer service, openness and value for money. Of course the market has change tremendously throughout the years, and the introduction of new legislation, such as TUPE has added new complications for buyers looking to go out into the market to find a new supplier.

However apart from knowing the legislative principles of TUPE, buyers need to have an understanding of the impact these regulations have on themselves, the incoming supplier and how to ensure they maximise the positive aspects of any transfer.

What is TUPE?

The Transfer of Undertakings (Protection of Employment) Regulations (TUPE) protects employees’ terms and conditions of employment when a business/contract is transferred from one owner/company to another. Employees of the previous owner/company when the business/contract changes hands automatically become employees of the new employer/company on the same terms and conditions.

It’s as if their employment contracts had originally been made with the new employer/contractor. Their continuity of service and any other rights are all preserved. Both old and new employers/contractors are required to inform and consult employees affected directly or indirectly by the transfer.

These regulations first came into effect in 1981 and were significantly amended in 2006 to give enhanced regulation of the transfer of employees where the provision of a service is involved. In January 2013 the UK government issued a consultation on proposed amendments to the TUPE regulations, the new regulations originally scheduled to be announced in July 2013 and are now expected in September 2013. Ideal will post information on how this will affect the transfer of cleaning contracts once the proposed changes are confirmed.

More information on the 2006 regulations can be found at:- https://www.gov.uk/government/…/tupe-a-guide-to-the-2006-regulations

Ensuring a smooth transfer

One of the key changes being proposed is the removal of the requirement for transferors (exiting contractor) to provide Employee Liability Information to transferees (incoming contractor) at least 14 days before the transfer but allowing the parties to negotiate arrangements for transferring information themselves. This change means that it is even more important for buyers to ensure that any service provision contract contains terms and conditions which include a requirement to provide TUPE information within a time frame that suits their buying regime. Given that the proposed amendment to Regulation 13 of TUPE (dealing with the obligation to inform and consult) will only require the transferor to provide such information which assists the parties in complying with their duties under that regulation, it is important that any information necessary to effect a smooth tendering process is also made available when required.

Getting the most out of any transfer

Many buyers and those overseeing the operation of contracted in cleaning services often feel that TUPE legislation restricts their ability to change/improve cleaning efficiencies and standards. All too often, we hear the comment that one or more of the cleaners is no good, but they have to transfer, so what’s the point in changing the cleaning contractor. Therefore it is vitally important that when a change of contractor is contemplated that the following important key elements are fully evaluated.

Adding value to the Cleaning Staff

The people conducting the cleaning are the most important asset in any service provision. They are the individuals who provide the service, and are the key to achieving the standards desired. Therefore with any change of Contractor there must be a focus on assessing the incoming service providers’ intentions on evaluating the capabilities, motivation and training of the cleaners, and that they can demonstrate clear and effective management processes which will evaluate, monitor and improve cleaner performance. Key elements include:-

  1. An introductory interview/consultation with transferring staff to introduce them to their new employer.
  2. Where new staff are to be employed, that there is a documented recruitment and selection policy and procedure, that provides for a consistent approach, with equal opportunity to ensure selection will be on the basis of merit, that is, the ability to do the job. Key features of such should include, role profiles for each job, outlining key requirements and competencies of the role; publicly advertising the post; ensuring applicants always complete an application form, are short listed for interview   and references taken.
  3. A formal induction process informing the cleaners of the management processes, policies and procedures including Health & Safety, Method Statements, Risk Assessments, COSHH, Aspects and Impacts,  and Process Training
  4. A review of the cleaning specification and an assessment of the cleaners understanding of its specific requirements.
  5. Introduction of routine individual cleaner performance reviews. Where the cleaning standards are assessed in the areas in which they clean, along with an appraisal of their attitude, attendance/time keeping, appearance and general understanding of the work processes is made. These written assessments are discussed with the individuals concerned any improvements and/or corrective actions, training needs identified and agreed and timescales set to ensure all issues are closed out. This process should be on-going, conducted at least quarterly and should also identify good and/or excellent performance, the use of a reward scheme could also further incentivise performance improvement.

In summary if you are looking to change cleaning provider, ensure that any new contractor will invest, time, interest, and management in adding value to your cleaners, and improvements will ensue.

Finally, it must not be forgotten that any investment in improving individual cleaner performance will only be achieved if the cleaners are given adequate support by supervisors and management, that robust management procedures are in place and the cleaners provided with the correct materials and equipment to conduct the work.

Accent Property

ACCENT GROUP

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Accent Housing

Accent Group awarded Ideal the contract by  to provide Communal Area Cleaning in 2012, following an OJEU Tender process. As well as Caretaking Services and Window Cleaning across General Needs and Sheltered Social Housing accommodation. The contract originally encompassed over 40 separate housing schemes across the Nottingham and Peterborough areas. Cleaning operations commenced in April 2012.

Although the client’s timetable allowed a mobilisation period of less than three weeks from contract signing to commencement of services; Comprehensive mobilisation plans enabled us to ensure that the TUPE transfer of existing staff took place in a smooth and efficient manner. Accent considered this critical as it involved employed staff as well as those transferring from other contractors.

On contract

At the started, we introduced all residents to our company; explaining who we were and to draw their attention to the information we were posting on scheme notice boards.  It also had the frequencies at which the cleaning would occur and provided them with the contact details for the central Help Desk.

Nottingham Head Office programmed and scheduled work and controlled and operated from our Nottingham and Peterborough Regional Offices. Fully equipped mobile teams delivered the services on the general needs schemes and by static cleaning operatives on the Sheltered Schemes and Accent’s offices. Sub-contractors carry out our window cleans, with the service controlled and managed centrally by Ideal.

The inclusion and involvement of the schemes’ residents was a priority for Accent Nene and to this end Ideal’s local management teams attend residents meetings as requested alongside Accent Nene management to deal directly with any cleaning issues or concerns and to acquire direct feedback from the residents on the quality of the service.

Other innovations

Ideal have contributed to the Accent Nene contract including: the introduction of a dedicated Help Desk and Issues Log, pre-paid Customer Satisfaction Survey Cards, in order to collect satisfaction data and also communicating to all residents by individual letter and via scheme notice boards, the agreed cleaning specification, when and how frequently the cleaning will take place and providing I.D. photographs of the cleaning operatives for recognition purposes. Older and more vulnerable residents were the audience that we noticed taking it particularly well.

High customer satisfaction levels have been maintained. This resulted in Accent Nene awarding Ideal a further 20 sites across the Cambridgeshire region; bringing the overall number of sites services up to over 60.

In 2015 Ideal were part of an industry engagement project with Accent to benchmark Cleaning Services across their entire UK. In 2017 Accent Group then put out to tender the cleaning services for the whole UK portfolio in 5 lots.

Ideal Cleaning Services not only retained the Eastern Lot but were also awarded the Yorkshire & Humber and North East lots. This new contract commenced on the 1st of August 2017.

CRISTAL PIGMENT UK

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Cristal Pigment UK

Cristal Pigment are the second largest producer of Titanium Dioxide in the world. Meaning they are based on a site that covers 160 hectares in Stallingborough, Grimsby. The site is a top tier COMAH installation and has strict health and Safety Policies and Procedures in place throughout.

Ideal was awarded the cleaning contract at Cristal in December 2013. After a lengthy tender process that started in the summer of that year. Cristal had made a strategic decision to separate their current full FM contract into standalone services in order. This was to enhance service provision by partnering with providers who were specialists in that particular area.

TUPE

Firstly, Cristal were looking for a company who would deliver a proactive and auditable cleaning system in-line with their own working practices and site safety systems. This mean’t transferring the 14 current staff in-line with TUPE. Also making detailed changes to the working processes and systems. Cristal thought our proposal, presentation and commitment to the contract was impressive. Hence, the start of the contract. 

Almost immediately, we were asked to transfer and encompass the on-site maintenance team of two individuals, which were not part of the initial tender, such was Cristal’s confidence in our approach and organisation to working schedules.

The inherent issues on site upon taking over the contract was the absence of a quality management system, as no quality audits were conducted and no feedback or ongoing training was being given to the Cleaning Operatives, for that reason it led to complacency within the team. We immediately introduced an assistant to the Site Supervisor to enable the Supervisor to furthermore encompass the changes we had introduced, rather then waiting till after an issue had arose.

Each month, quality audits of every area of the site take place, which we log and discuss at monthly management meetings with our client.

The importance of this contract means our Managing Director, General Manager and Regional Manager attend the monthly management meetings. Discussing all aspects of the site cleaning performance, consequently implementing any changes or suggestions immediately.

Being a contractor on site; we attend weekly Health and Safety meetings to share best practice between Cristal and all other contractors on site. Therefore, keeping our high safety standards.

Feedback

Cristal have provided positive feedback with the quality management systems we have introduced. The performance data is now available to Cristal management covering the entire cleaning process on site.

The KPI’s that are in place have resulted in superb “quality scores” from Cristal on a continuous basis since the start of the contract.

Ideal’s goal, was to create a solid and progressive relationship, with not only our client but with our newly transferred cleaning team. The subsequent success of the contract is a confirmation of our hard work and dedication to the site.

As a result, Ideal has created a professional and proactive approach to the fluid and challenging requirements of our client. This has led to their confidence in our ability to deal with every situation that arises; and the very real possibility of additional works for our heavy duty cleaning division in the future.