TUPE compliance in schools – important lessons from a recent ET case

This employment tribunal (ET) case highlights the correct process employers need to follow when services such as cleaning are brought in-house. It focuses on the legal protections given to employees under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

Zoe Marie Gilbertson was a cleaner who had worked in the role since 2016. Over time, her employment transferred between companies providing cleaning services, eventually working for AAA Properties Group Ltd (trading as Servicemaster). From late 2023 onwards, she worked almost entirely at Elliston Primary Academy, spending around 98% of her working time there.

Bring the service ‘in-house’

In 2024, The Enquire Learning Trust, the school’s multi academy trust, decided to end its contract with the cleaning company and bring the service ‘in-house’. This meant the trust would directly employ cleaners rather than using an external contractor. While one cleaner was taken on by the trust, Ms Gilbertson and several others were not. The trust instead advertised new cleaning roles, even though the work remained essentially the same.

Automatic transfer

Ms Gilbertson brought a claim to the ET, arguing that her employment should have transferred automatically to the trust under TUPE. TUPE is designed to protect employees when a business or service transfers to a new employer. It ensures that staff assigned to the transferring work move across with their existing terms and continuity of service preserved.

The ET agreed with Ms Gilbertson. It found that there had been a ‘service provision change’ under TUPE when the cleaning service moved from the contractor to the trust. The group of cleaners at the school was considered an ‘organised grouping of employees’ dedicated to that work. Because Ms Gilbertson spent the vast majority of her time at the school, she was clearly assigned to that grouping.

As a result, her employment should have transferred automatically to the trust on 7 August 2024.

Effective dismissal

By refusing to recognise her as an employee, the trust effectively dismissed her. The ET ruled that this dismissal was automatically unfair because it was directly connected to the transfer and there was no valid economic, technical or organisational reason for it.

The ET also noted that no dismissal procedure had been carried out, which meant that the dismissal was also contrary to the Acas code of practice.

Compensation

Ms Gilbertson was awarded compensation totalling £5,291, including an uplift due to the employer’s failure to follow the Acas code of practice. The full decision can be found here.

Key lessons for employers

This case provides several important lessons for employers:

• TUPE applies when services are brought in-house, not just when outsourcing.
• Employees who mainly work on a specific contract are likely to transfer automatically.
• Employers must carefully assess staffing implications before changing service arrangements.
• Failure to comply with TUPE can result in automatic unfair dismissal claims and financial liability.
• Proper consultation and procedures are essential when dealing with affected staff.

In summary, the case reinforces that employers must treat staff fairly and follow employment law closely when making operational changes. TUPE protections are robust, and ignoring them can lead to significant legal and financial consequences.

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