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Transfer rights
Page 36
Page 37
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The transfer of 1,650 NHS jobs to DHL has provoked concern from Unison, but at least it has the transfer regulations on its side. Chris Tindall reports on how Tupe protects workers' rights.
The government's decision to contract out the delivery of healthcare products on behalf of the NHS brings into play the Transfer of Undertakings (Protection of Employment) Regulations,otherwise known as Tupe.These are designed to protect employees when work or contracts are transferred from one employer to another.
Under the agreement. DHL is now responsible for delivering catering supplies and medical equipment to NHS hospitals and OP's surgeries. The firm takes over the work previously carried out by NHS Logistics and the agreement is expected to result in ilbnworth of savings for the NHS.The deal has also led to DHL taking control of 1,650 staff who transferred with the contract on 1 October.
Health Minister Andy Burnham says the vast majorityof these jobs are safe, but staff union Unison has held two days of strikes to protect pay and conditions under Tupe. No further strikes are planned.
But Tupe is intended to protect employees and, following a revision of the regulations this year in an effort to resolve various uncertainties, workers in the road transport industry in particular are now provided with added security. Tupe also protects the terms and conditions of employees when businesses or contracts change hands.
The revised 2006 Tupe regulations introduce a separate 'service provision changes' category, which applies in circumstances of outsourcing or insourcing. The new regulations also introduce limited scope to change terms and conditions of employment, and bring a right to claim constructive dismissal if an employee's working conditions are changed substantially.
According to Joanna Cowie, employment lawyer at Barker Gotelee, the protection to terms and conditions afforded byTupe lasts for an indefinite period. But she adds that the more time that elapses since the transfer, the harder it becomes for an employee to establish that any change to their terms and conditions was caused by the transfer.
"What case law says is that there's no specific time scale," she explains. "[Terms and conditions] are protected and no variation can be made because of the transfer. You can't change terms and conditions just because it's commercially convenient."
Unison says that in DHL's case, workers' terms and conditions should be protected for at least the length of the NHS contract, which is 10 years.
Cowie also says that the Tupe legislation provides an automatic right to claim unfair dismissal if someone is dismissed because of the transfer; as far as redundancy is concerned, DHL has inherited NHS Logistics' terms and conditions, so it would have to pay out redundancy on those terms rather than its own.
An employee cannot he forced to transfer if they do not want to, and they can object by informing either the old or new employer.
If the employee's objection is to a substantial change in working conditions, they will be treated as having been dismissed and the employee could claim unfair dismissal.
However, if they obj eetwi thoutdemonstrating good cause, their contract of employment will be terminated and they will not be treated as having been dismissed.Therefore they will not be entitled to redundancy payment.
USEFUL CONTACTS A guide to the 2006 Tripe regulations can be found at: www.dti.gov.ukifilesifile20761.pdf
A link to the DTI website with further information on Tupe: www.dti.gov.uk/employment/trade-unionrights/tupe/page16289.html DHL and Tape Responding to staff concerns about the future, DHL says I conducted "a number of employee briefing sessions in the weeks preceding the contract takeover". All staff moving over to the new NHS Supply Chain were therefore given the opportunity to find out more about DHL and their terms and conditions. A spokesman says that, through these sessions, it was able to confirm there would be no changes to the terms and conditions of workers' employment. It is also due to meet Unison, The spokesman says it has "no plans to make any reclundancIes at present", nor are -there plans to close any distribution centres within the next five years.
A Department of Health spokesman does not rule out contracting out other services that the NHS considers non-core to health. He explains: If the private sector can help the NHS deliver even better services for patients and better value for the taxpayer, then we will use it. If it can't, we won't." Service provision changes The new regulations define a 'service provision change as when an employer: contracts out certain activities; ends a contract with one contractor to carry out certain activities and gives it to another; or brings certain activities in-house.
Joanna Cowie at Barker Gotelee solicitors says the addition of a service provision change is particularly important to haulage operators because it is often this sector that takes over a contract to carry out a service on behalf of a business. Tupe applies to a service provision change as long as there is an "organised grouping of employees [...] which has as its principal purpose the carrying out of the activities concerned on behalf of the client." It excludes cases where there is no identifiable grouping of employees, because it would be unclear which employees should transfer in the event of a change of a contractor. However, a "grouping of employees'' can constitute one person
IN A NUTSHELL: TUPE
Broadly speaking, the effect of the Tupe regulations is to preserve the continuity of employment and maintain the terms and conditions of those employees who are transferred to a new employer when a relevant transfer takes place.
The regulations, as revised in April, include: • A separate 'service provision changes' category to cover a company that outsources a service; for example, a retailer outsourcing its transport to a third-party hauler.
• Limited scope to change terms and conditions, provided there is an 'economic, technical or organisational reason" for doing so.
• The right to claim unfair dismissal if there is a substantial change to an employee's working conditions.
• An obligation on the old employer to notify the new employer of the identities of the employees, plus any union agreements and liabilities that remain in place following the transfer, • Making both employers liable for compensation for a failure to consult.
In addition, the regulations: • Are not subject to a time limit.
• Transfer legal liability for, say, acts of discrimination or for personal injury.
• Do not apply to occupational pensions, which do not transfer.
• Apply to employees only,