TUPE when a security contract changes hands

Security contracts change hands more often than almost any other outsourced service, and when they do the officers generally transfer with them. The employment law is a matter for advisers and the current ACAS guidance; what concerns a security contractor operationally is what happens to the compliance position on the morning the transfer completes.

You inherit people, not their files

The uncomfortable position an incoming contractor frequently finds itself in is that it now employs officers on a client's site whose screening was carried out by somebody else, to a standard it has not seen, evidenced in records it may not receive in full or on time.

Those officers are working from day one. The contract requires it, the client expects it, and the contractor is responsible for them — while holding, in many cases, very little. That gap is the single most common compliance exposure in the sector and it is entirely predictable, which means it can be planned for.

Ask for the compliance records during due diligence, not after

Employee liability information has to be provided, and it is usually treated as a payroll and terms exercise. The compliance records — screening files, licence details and expiry dates, training histories, any disclosures handled during employment — are what an incoming contractor most needs and least reliably receives.

Asking for them explicitly, early, and in a specified form is what separates a clean transfer from three months of reconstruction. Where they do not arrive or are incomplete, that is worth knowing before the transfer date rather than discovering it during a client audit in month two.

Re-screening is a commercial and legal question, not just a compliance one

Where inherited screening is absent, incomplete or to an unknown standard, a contractor has to decide what to do. Re-screening a transferred workforce has cost, takes time, and has employment implications that need advice — it is not a decision to make unilaterally on compliance grounds.

What is within a contractor's control is knowing which officers are affected, and how badly, before deciding. A transfer where forty officers arrive and five have no usable screening record is a manageable problem. The same transfer where nobody knows which five is not.

In practice: the audit in month two

A contractor takes on a site with twenty-two transferred officers. Employee liability information arrives covering terms and payroll. Screening files arrive for fourteen. Nobody chases the remaining eight, because the site is running and the contract is busy.

The client audits in week nine and asks for screening evidence on three named officers, two of whom are in the missing eight. The contractor's position is not that the officers were unscreened — they almost certainly were — but that it cannot show it, which from the client's side looks identical.

Common mistakes

• –Treating employee liability information as a payroll exercise only
• –Not specifying which compliance records are needed, and in what form
• –Accepting an incomplete handover because the site is running
• –No audit of what was actually received against the transferring headcount
• –Deciding on re-screening without knowing who is affected
• –Discovering the gaps when a client asks rather than at transfer

One practical test: audit what actually arrived

On the day a transfer completes, count the officers who transferred and count the screening files you received. Then do the same for licence details and training records.

The three numbers are rarely equal, and the gap is easiest to close in the first fortnight while the outgoing contractor is still responsive and the client still expects transition activity. Left until a client audit, it becomes a problem with no remaining route to a solution.

• –Specify which compliance records you need during due diligence
• –Audit what arrived against the transferring headcount on day one
• –Chase while the outgoing contractor is still engaged
• –Know which officers are affected before deciding on re-screening
• –Take employment law advice — this is not a compliance decision alone

Worth adding: tell the client what you inherited

Where records arrive incomplete, saying so early — with what you are doing about it — is considerably better than the client discovering it at an audit. Clients understand that a transfer is messy; what they react badly to is finding out months later that it was messy and nobody mentioned it.

It also establishes a record that the gap was inherited rather than created, which is worth having.