We use a self-employed cleaner who comes in three-four hours during office hours on a Friday. This is no longer suitable and we have an alternative company ready to deal with it. What, if anything, do we need to be aware of before terminating the existing cleaner’s services?
Status of employment: There are a number of issues raised by your question. The first is whether the cleaner is actually self-employed (working under a “contract for services”) or in fact your employee (working under an “employment contract”).
There is no detailed definition of who is an employee incorporated into the legislation and even if the employer pays the PAYE and NI they may still be able to establish that there was no employment relationship but this is more common in the construction industry. Some guidelines for the purpose of determining employment status have now been laid down in various cases over the years. The factors which have emerged from those cases are summarised below and are based on whether the individual is in business on their own account, which requires a determination of who controls the work done particularly with respect to the right to delegate, send a replacement, or hire staff to help; whether the work has to be done within strict times set by the principal; who provides the tools for the job; what control is exercised over how the work is done and whether an offer of work can be turned down. The higher the degree of control then the more likely it is that an employment relationship exists. This question is of crucial importance and yet is very difficult to answer. A good tip is that a person who provides cleaning services on commercial premises under a contract for services would usually be expected to have a Health and Safety policy and insurances to cover accidents, etc.
Terminating the contract: If the cleaner is truly self-employed then it will be a matter of terminating the contract for services and selecting another supplier. It will depend on the nature of the agreement as to whether there is a contractual obligation to compensate the cleaner.
If your existing cleaner is in fact an employee, then it may be that TUPE regulations apply because of the rules on service provision changes. You could start by reading up on previous TUPE answers here – The Rules of Redundancy. The question of terminating the existing cleaner’s contract will then be for the new cleaning company to answer. The general rules on dismissal, although not likely to be relevant to your situation, are that the dismissal has to fall into one of the five potentially fair reasons, these are: conduct, capability, legality, redundancy, or the so called catch all, “some other substantial reason”.
Peter Done is managing director and founder of HR consultancy Peninsula
Keeping tabs on TUPE as a small business