Termination of a contract – what if your employee is only part-time?
We use a self-contained cleaner that comes in three to four hours on a Friday during office hours. This is no longer suitable and we have an alternative company ready to deal with it. What, if anything, do we need to consider before we end the existing cleaning services?
Employment status: Your question raises a number of questions. The first is whether the cleaner is actually self-employed (working under a “service contract”) or actually your employee (under a “work contract”).
There is no detailed definition of who a worker is who has been included in the legislation, and even if the employer pays PAYE and NI, they may still be able to prove that they were not employed, but this is more common in the construction industry. In various cases, some guidelines for determining employment status have been established over the years. The factors that have emerged from these cases are summarized below and are based on whether the person is in the business for his own account, which requires a determination of who controls the work done, particularly with regard to the right to delegate, send a replacement or hire staff to help; whether the work must be carried out within the strict deadlines set by the client; Who provides the tools for the job? What control is exercised over how the work is done and whether a job offer can be turned down? The higher the level of control, the more likely it is that an employment relationship exists. This is a crucial question, yet very difficult to answer. A good tip is that a person providing cleaning services on business premises under a service contract is usually expected to have a health and safety policy, insurance to cover accidents, etc.
Termination of the contract: If the cleaner is really self-employed, the service contract must be terminated and another supplier selected. It depends on the type of agreement whether there is a contractual obligation to compensate the cleaner.
If your existing cleaner is actually an employee, the TUPE terms may apply due to the rules for changes in service delivery. You can start reading previous TUPE answers here – The Rules of Redundancy. The question of terminating the existing cleaning contract will then be answered by the new cleaning company. The general rules for firing, while likely not relevant to your situation, are that the firing must fall into one of five potentially fair grounds: conduct, ability, legality, firing, or what is called the catch all. “Another major reason”.
Peter Done is the managing director and founder of the Peninsula personnel consultancy
Keep an eye on TUPE as a small company