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“Contractual pitfalls can prove expensive and time-consuming if schools find out about them the hard way”
The employee should be managed by the supplier rather than by the school, but of course the school will want to ensure that the employee coming onto the premises behaves correctly, and the usual safeguarding provisions should be included. The contract should also make clear what happens to that employee at the end of the relationship. It may well be that if the school decides
to end its relationship with the supplier, the person running the school shop will transfer to the school's employment (or to a replacement supplier) by Transfer of Undertakings (Protection of Employment) Regulations (TUPE) – whether the school wants them or not.
Problems with employees It is particularly important to check
the employment-related aspects of cleaning contracts. First, what level of control does the
contract allow you over individuals? Most contracts will limit the school to dealing with the service provider only and not with the individual, and there are good legal reasons for this. However, the school should be aware that it has limited scope to deal directly with the individual carrying out the service, and this can lead to inflexibility if ad hoc changes or amendments are needed. Equally importantly, what happens
to the staff at the end of the contract? In most cases, those staff will transfer to whoever is providing the service next – whether that be the school itself or another supplier. It is not
unknown for schools to be unhappy with the performance of the individuals carrying out the cleaning, and to seek to terminate their relationship with the supplier as a result – only to find that those same unhelpful staff transfer to the new provider by TUPE. In such a situation, the school would be beter to rely on its contractual right to ask the supplier to change the individuals it sends – as long as that right has been included in the contract! Some or all of these pitfalls can prove
expensive and time-consuming if schools find out about them the hard way. Best practice is to get all contracts reviewed by a solicitor before they are entered into. Veale Wasbrough Vizards is always happy to carry out such reviews for an agreed fixed fee. IE
Oliver Pool is a senior associate at leading education law firm Veale Wasbrough Vizards. Oliver can be contacted on 0117 314 5429 or at
opool@vwv.co.uk
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