A silent and illegal culling

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!

TUPE to be reviewed as part of law shake-up

Reprinted from an article by Claire Churchyard - People Management

The government has announced plans to review Tupe regulations, as well as collective redundancy and discrimination compensation, as part of its efforts to reduce the burden of red tape.

The three newly-targeted areas were highlighted by Ed Davey, Minister for Employment Relations, in a speech to the Institute for Economic Affairs. He said that Tupe (Transfer of Undertakings Protection of Employment) regulations which protect employees’ pay and conditions when an organisation is transferred from one owner to another, were being reviewed because some businesses think these rights are “gold plated” and overly bureaucratic.

Discrimination compensation could also be slashed as employers criticised the unlimited and unpredictable levels of award given by tribunals and said that large payouts could encourage ‘vexatious claims’.

Collective redundancy rules will be reviewed as employers have said that the 90 day minimum consultation period is “hindering their ability to restructure efficiency and retain a flexible workforce”. Employers in financial strife said they worry about how long they will need to go on paying staff after it is clear they need to let them go.

Davey said: “The areas we are reviewing are priorities for employers. We want to make it easier for businesses to take on staff and grow.

“We will be looking carefully at the arguments for reform. Fairness for individuals will not be compromised – but where we can make legislation easier to understand, improve efficiency and reduce unnecessary bureaucracy we will.”

Steve Radley, director of policy at EEF, the manufacturers’ organisation, welcomed the review but added: “We also need to see a change in culture from government with significantly less use of regulation to achieve its aims.

“With another consultation due next week on new flexible rights for employees, the government must be careful that it is not giving business more flexibility with one hand and taking it away with the other.”

But Unite’s general secretary Len McCluskey criticised the plans as an “onslaught on working people” and called for “the bonfire of employee rights” to be extinguished.

Ben Willmott, CIPD senior public policy adviser, questioned what scope the government would have to reform these laws given they are underpinned by European legislation.

He said that on the issue of compensation for discrimination claims, for example, there was an European Court of Justice ruling (1993) that said fixing an upper compensation limit wouldn’t adhere to the equal treatment directive.

“In light of this it’s difficult to see any scope for imposing a limit on discrimination compensation claims.”

Willmott said the CIPD supported current collective redundancy legislation.

He also supported “simplification” of the “extremely complex” TUPE regulations but explained that while there might be scope for improving the guidance, the legal framework underpinning it was from Europe so it might be harder to make the actual law simpler.

Dishonesty in the Welfare to Work industry

As we all know the welfare to work industry is going through turmoil as it prepares for the delivery of the new Work Programme. Hundreds of people are now on redundancy notice though hopefully, a good number will find alternative employment with other providers.

Many of these will transfer under TUPE regulations in the hope their jobs will remain and they will continue to earn an income. What remains unclear is how many of these will be subject to redundancy notices once they have been transferred over.

Already we have heard one provider appearing the ‘bend’ the rules by talking about adhering to the ‘spirit’ of TUPE, rather than stating clearly they will follow the guidelines to the letter. We can only hope this was little more than a figure of speech and that staff will be given full rights under employment law.

Yesterday I was shocked to receive news from one of my informants. It appears that one of the unsuccessful providers may be forced to shed its entire staff. Many of these will be subject to TUPE considerations, but it will undoubtedly also result in a large number of redundancies. As the deadline for the transfer of clients from FND to WP looms, staff in the company are being urged to secure as many jobs as possible before the deadline – the cynical part of me wonders whether this has anything to do with profit rather than any other factor. In an explanation of this approach a senior manager explained it was to make the staff look as attractive as possible so that the highest performers would be TUPE’d but those who failed to deliver would almost certainly be out.

This is blatantly illegal and contravenes both the spirit and practice of TUPE. All frontline staff are eligible for TUPE transfer, though the company can limit the numbers based on their own requirements. Thus, if 100 staff are eligible for transfer, but the new company only needs 10 then the transfer will take factors into account like closeness to work etc. Sadly, those not transferred will be made redundant, though in some situations they may be transferred and made redundant by the new provider.

At a time when the sector is going through such pain it is incumbent on senior managers to be honest with their staff. They need to keep them regularly updated of news as it happens and offer clear guidelines about the process that will be adopted. In all of this process there can be no room for immoral profiteering from the fear of staff due to lose their jobs – but since when did bosses ever care about the workers?

Welfare to work and the 'lobster' effect

Most readers are aware that if you place a lobster in boiling water it will jump out. Yet, if you place it in cold water and increase the heat slowly it will stay in the pot until it eventually dies. If ever there was a living example of how that applies to humanity it is in the current behaviour of welfare to work staff.

Several weeks ago the government announced the closure of Pathways to Work and NDDP contracts and this was soon followed by the awarding of new contracts for the Tory flagship Work Programme. Analysts have long argued that Pathways to work and NDDP were destined for the ‘chop’ so it came as no surprise – yet a sizable number of people working in the industry seemed astonished the axe had fallen.

In a similar vein, the new prime and subcontractors are starting to recruit their staff for the delivery of the new contract. This has already meant that considerable numbers of people have been given redundancy notices and others have been advised they will be subject to TUPE regulations.

I have long argued that the new programme will not require anything like the numbers needed for the previous Flexible New Deal contract. Sadly, my insights are now starting to come to fruition. A number of large organisations have already started the process of ridding themselves of surplus staff, whilst a number have already started the process of TUPE’ing staff over to the new provider.

Inevitably this will mean that sooner or later new providers will ‘fill their books’ and have all the staff they need, leaving many staff who currently work for providers who lost out on the provision out on a limb.

Information coming in already suggests that at least three providers are without any work whatsoever after September, 2011 and this will mean they will have no need for any operational staff after that time. Unfortunately none of these companies have contacted the new providers to begin TUPE negotiations so this will inevitably leave everyone out in the cold and could result in at least 1,000 redundancies.

Overall it is unclear how many people will lose their jobs throughout the sector. Information from companies is deliberately vague and their employees are being fed little to no information. In most instances staff are being advised not to worry because they will be ‘subject to TUPE@ - but existing evidence has already shown this does not automatically mean they will still remain unemployed. Indeed, the available evidence is very much that because the financial model required by DWP was so close to the edge, most providers were forced to produce delivery designs where less staff would be required to achieve more, for less money.

Had the industry stated at the beginning of February that within six months 2 – 3,000 people (and possibly more) would be booted from their jobs there would have been an outcry. Staff would have been writing to the papers and to their MP; Grayling would have faced a picket line when he spoke at the Welfare to Work conference; some organisations might have had to contend with industrial action to protect jobs; MPs would have been asking questions in the House of Commons.

Instead the bosses remained silent – and if they did say anything, they told and continue to tell half-truths., or downright lies. Typical of this is A4e, who recently put staff in areas where they did not win on redundancy notice. The hope is that following TUPE consultation all of these people will move over to new employers – but of course this depends if they have vacancies. Also, some are starting to realise that local delivery managers may not be subject to TUPE and could find themselves out on their ear.

Sadly the people in the sector are almost certainly not going to do anything about it. Like ducks in the pond they are all waiting for the hunter to come and shoot them. Whilst they wait for the slaughter to begin most of these good people are working like Trojans in the hope that above average performance will somehow give them the chance of a new job.

It is very, very sad and people’s lives will be decimated because Duncan Smith and Grayling wanted to make their mark on the industry. Well they have – and as the cull begins, the blood is dripping from their hands.