TUPE explained: a plain-English guide for facilities managers

The Transfer of Undertakings (Protection of Employment) Regulations 2006 — universally known as TUPE — is UK employment legislation that protects employees when the business or service they work for is transferred to a new employer. In commercial cleaning, TUPE is one of the most frequently misunderstood and poorly managed aspects of contract transitions. The consequences of getting it wrong — whether as the outgoing contractor, the incoming contractor, or the client — can be significant.

At its core, TUPE provides two protections. First, it transfers the employment contracts of affected employees automatically to the new employer on their existing terms and conditions — the new employer cannot unilaterally reduce pay, benefits, or working conditions as part of the transfer. Second, it restricts the ability to dismiss employees for reasons connected to the transfer — doing so is automatically unfair dismissal in most circumstances.

For facilities managers and property managers who switch cleaning contractors, the practical implications are: your new cleaning company inherits the existing workforce (or part of it), their contracts, their length of service, their holiday accrual, and their employment history — including any disciplinary or grievance records from the past two years. Understanding this before you start the transition is critical.

The legislation that governs TUPE is the Transfer of Undertakings (Protection of Employment) Regulations 2006, as amended by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014. The government's own TUPE guidance is available at gov.uk/transfers-takeovers.

TUPE applies to a cleaning contract change when there is a "service provision change" — defined as a situation where a client stops having a service performed on its behalf by one contractor and starts having it performed by another (or takes it in-house). This is the most relevant TUPE trigger for facilities managers.

For a service provision change to trigger TUPE, the employees affected must be "an organised grouping of employees" that has "as its principal purpose" the carrying out of the activities in question. In cleaning terms: if a group of operatives are principally assigned to cleaning your premises, they are covered by TUPE when you switch contractors. If the cleaning is provided by a generic pool of operatives who rotate across dozens of sites without any particular assignment to yours, the TUPE picture is less clear.

In practice, most professional commercial cleaning contracts involve consistent, site-specific assignment — the same operative or small team returning to your building on the same schedule each week. This is precisely the working pattern TUPE was designed to protect. The Supreme Court has consistently held that this type of arrangement constitutes an organised grouping, and TUPE applies.

Common situations where TUPE applies in commercial cleaning

• An office cleaning contract running for 12+ months, with 2–4 named operatives visiting on a fixed schedule
• A property management company switching the cleaning contractor for a managed commercial building, where the same team has cleaned the building for years
• A healthcare facility changing cleaning providers, where operatives have been trained to the practice's specific CQC protocols
• A construction contractor changing welfare facility cleaners midway through a long-term project

Situations where TUPE may not apply

• A one-off or infrequent cleaning job (no organised grouping exists)
• A contract where the outgoing provider uses a pool of casual workers with no site-specific assignment
• Where the nature of the service changes fundamentally between the two contracts (this is legally uncertain and should be taken on advice)

On the TUPE transfer date — which should be clearly agreed between outgoing and incoming contractors — the employment contracts of all affected employees transfer automatically to the incoming contractor. This transfer happens by operation of law: no new employment contracts need to be signed, no resignation and re-engagement is required, and the employees' continuity of employment is preserved as if they had worked for the incoming contractor throughout.

From the employee's perspective, their statutory rights do not change: their pay remains the same, their holiday year carries forward, their length of service for statutory purposes is maintained, and their pension arrangements continue (though occupational pensions are a specific exception — see below).

From the incoming contractor's perspective, they inherit: the employees' contracts exactly as they were; the employees' continuous employment (which is the basis for statutory notice periods, redundancy calculations, and unfair dismissal claims); any disciplinary warnings, grievances, or tribunal claims raised in the two years before the transfer; and any collective agreements that applied to those employees.

The pension exception

Occupational pension benefits accrued under a final salary or defined benefit scheme do not transfer under TUPE. However, if the outgoing contractor operated a defined contribution (money purchase) pension scheme, the incoming contractor must provide access to an equivalent scheme — though they are not required to match the contribution rate. This is frequently misunderstood. The incoming contractor must provide a pension, but not necessarily the same pension. Given that most commercial cleaning operatives are enrolled in a basic qualifying workplace pension under auto-enrolment, the pension issue is usually straightforward in cleaning transitions.

The most common mistake facilities managers make in cleaning contract transitions is not giving enough time. TUPE has mandatory timelines that constrain how quickly you can move, and rushing creates both legal risk and operational disruption.

The 28-day ELI requirement means you need at least 28 days between notifying the outgoing contractor and the transfer date — and in practice, you need more to allow for site visits, operative briefings, and equipment sourcing. A minimum of 6 weeks between notice and transfer is realistic for a straightforward cleaning contract; 8–12 weeks is more comfortable.

TUPE problems in cleaning contract transitions are common. Here are the most frequent failure points and how to avoid them:

1. Outgoing contractor refuses to share employee information

Some outgoing contractors are hostile and delay or refuse to share ELI, hoping to make the transition difficult. This is unlawful. The incoming contractor can make a tribunal claim for compensation of at least £500 per employee. As the client, you can help by clearly notifying the outgoing contractor in writing, referencing their TUPE obligations, and setting a firm ELI deadline in the transition plan.

2. Incoming contractor refuses to take on the workforce

A contractor who refuses to absorb TUPE-qualifying employees is taking a significant legal risk — refusing to employ transferring staff can constitute automatically unfair dismissal for which the incoming contractor may be liable. Some contractors price lower by assuming they will not inherit existing staff. Be wary of any cleaning contractor who cannot explain their TUPE approach clearly and in writing.

3. Notice period is too short

Giving 30 days notice when you need 30 days for the contractor to gather ELI plus a further briefing and mobilisation period is mathematically impossible. Always give more notice than you think you need. If your contract only requires 30 days notice, you can still give longer — 60 or 90 days gives everyone more room to do this properly.

4. Employees object to the transfer

Employees have the right to object to a TUPE transfer — they simply resign, their employment ends, and they do not transfer. Objections are more likely when the incoming contractor has a poor reputation, or when employees have been told (truthfully or not) that their pay or conditions will worsen. Managing this requires clear, early, and honest communication from the incoming contractor about what will not change.

Vigil Cleaning Services manages TUPE transitions as a standard part of contract onboarding — at no additional cost to the client. When taking over an existing cleaning contract, we:

• Identify which operatives are likely to be TUPE-qualifying at the site assessment stage, before contracts are signed
• Request employee liability information from the outgoing contractor within the legally required timescales
• Consult with affected operatives as required, informing them of what the transfer means for their terms and conditions — which do not change
• Absorb all qualifying operatives into Vigil's direct employment on their existing contractual terms
• Provide clients with written confirmation that TUPE obligations have been met before the transfer date

Because Vigil directly employs all its operatives — rather than using agency staff — there is no ambiguity about employment status and no risk of TUPE obligations falling to an employment agency. The employment relationship is clear, the ELI process is straightforward, and clients have a single point of accountability throughout.

If you are switching from a contractor that uses agency staff, the TUPE picture can be more complex — agency workers generally do not have the same automatic TUPE protection as directly employed staff, though this area of law is evolving. We recommend taking employment law advice in these circumstances.