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!

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?

Compulsory redundancies in the armed forces

by Richard Exell
(Senior Policy Officer - TUC)

On Monday the RAF released the details of their redundancy scheme. Under the Strategic Defence and Security Review, published in October, RAF personnel will fall by 5,000. The service is seeking volunteers for redundancy, but “this is a compulsory programme” and it is expected that 11,000 of the 17,000 reduction will be “non-voluntary”. The Prime Minister has said that 5,000 compulsory redundancies will be from the army, 3,300 from the Navy and 2,700 from the RAF. The initial round of RAF redundancies will see 1,020 service men and women made redundant, including 529 “ground tradesmen”, 121 officers and 170 trainee pilots; two Tornado squadrons will be disbanded. The Army and Navy are due to release details of their schemes next month.

(You can read more of Richard's blogs HERE)