I am disturbed by the number of reports I am receiving of situations where people in the welfare to work sector are facing redundancy and management are, either through lack of understanding, or intentionally are treating unaffected staff unfairly.
In one group of cases brought to my attention an employer is trying to force staff to accept either reduced hours or redundancy. Clearly, people affected are in something of a “Catch-22” situation because if they accept the former then later they are made redundant, the payment will be based on the reduced hour’s income and not their original full-time salary. On the other hand, if they go for redundancy today they lose any potential income between now and the end of the FND contract and may find themselves separated from any future TUPE considerations that may apply.
Fortunately for them the company is acting illegally under the Employment Rights Act, 1996 as they cannot force staff to make such a choice and the reduced hour’s option can only be adopted if ALL the staff agree.
The second situation involved a small to medium sized provider who, once they heard they had lost all their contracts set about implementing a high-powered campaign to place as many of their clients in jobs as possible. Caseworkers, job matchers and employer engagement staff were all encouraged to treble their efforts on the grounds it would make them more attractive to a new employer.
As staff became increasingly more unsettled the hierarchy set about visiting various locations “reassuring” staff they would all be considered by the new provider for TUPE. Then they committed the ultimate “no-no” – first they told all staff their jobs were safe and that everyone would be TUPE’d over to the new provider. This is factually inaccurate, but not illegal. The reality is that the new provider will inform the old one of how many staff they will require and these will be selected from those on the TUPE list. Selection is usually determined by simple factors such as proximity to the new place of work, or the match between the old job and the new one.
The second “no-no” was more alarming. Here the employer advised staff to increase their efforts as TUPE’d staff would be selected according to performance and those with poor results would not be transferred over to the new employer. This is both factually wrong and illegal. The new provider is not allowed to “cherry-pick” staff in this way and if they attempt to and reject certain staff, the people concerned could bring a case of unfair dismissal against both the old and the new provider.
Finally, there has been the broad lack of information that has and continues to pervades the sector – the “Will I or won’t I be transferred under TUPE regulations” question that has bounced around the sector for weeks. New and old providers have used a variety of cons to avoid answering this question, ranging from the lack of information coming from DWP, through to the uncertainty of what programmes are eligible for TUPE transfer.
Much of this had been decided weeks before and the fact that employers failed to advise staff is disturbing. Most providers knew many weeks ago that ESF funded projects, Pathways to Work and NDDP would not be eligible for consideration under the TUPE guidelines, yet it has taken until very recently for most employees to be aware of their position. Why has it taken so long when the information was known to management weeks ago?
The there has, and remains the issue of who will, or will not be TUPE’d. Now, primes will be aware of their staffing requirements to run the new project as this will have been factored in during their bid writing exercise. Similarly, nearly all of their supply chain will have been put in place when the bid was submitted and mf these will have had to calculate their expected staff requirement. Therefore it follows that in each CPA successful providers know how many staff they have and how many more they need. Now, if new providers know that in a certain CPA they require 100 new staff, it follows most of these will be accessed under TUPE transfer. Unfortunately, this information is not being made available and so staff are being left hanging in the hope they will be selected, but with the uncertainty there may not be any job to transfer into.
New employers could have outlined their requirements and shortfalls – they did not. Why? Were they frightened that frontline staff would suddenly see the extent of the disparity between the staff requirement for FNF and the new Work Programme. Were they trying to hide the fact that hundreds have and will be made redundant as a result of this new provision?
The way staff in the sector have been treated over the past few weeks is an absolute disgrace and has frequently crossed the boundaries of legality. Certainly there have been a number of occasions where employers have stayed within the law, but crossed the borders of morality by using redundancy law for their own ends in order to reduce the period of notice.
It is a disgrace and it has scarred the sector for many years to come. If there is any justice providers will be facing weeks and months of litigation as they try to resolve the increasing number of complaints of unfair dismissal.
What is also disturbing is the extent of silence amongst politicians. They have said nothing about the scale of the redundancies and done little to lobby the minister. By the time something is done it will be too late and hundreds will already be signing on – many will never secure work in the sector again.
One thing is clear, after behaving towards staff in such an inappropriate, inconsiderate and sometimes illegal way, no-one left in the sector should be under any illusion about their bosses. The evidence of the past weeks has shown how many of them pay lip service to ‘caring’ for their staff, whilst looking for the cheapest way to get rid of them when times are hard.
Proving once again – you just can’t trust bosses!
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