I have just noticed how the Tories seem to have trashed TUPE...

One of the good things about Brexit is it means the Tories are far too busy stabbing each other in the back and failing to get bills about treaties through parliament to bring in more legislation designed to curb workers rights.

It’s not generally widely known but I discovered the other day (for reasons that are too complicated to go into here) that in 2014 David Cameron engaged in a massive watering down of TUPE legislation to the point that the strong protections it offered to employees have now been diluted to homeopathic levels.

TUPE (Transfer of Undertakings Protection of Employment) is the system (that came to us via the EEC/EU) by which workers who’s jobs are moved from one employer to another as the result of insourcing/outsourcing or takeovers have their terms and conditions of employment partially protected.  The idea is that it is bad for employees to suffer a situation where every time a company is taken over their terms and conditions are made progressively more detrimental.  The spirit of the legislation was designed to uphold the idea that sacking one group of trained workers to replace them with another group of untrained workers to save money is bad for the economy because it results in an overall degradation of the number of skilled workers in the economy.  Obviously David Cameron couldn’t leave this alone …something had to be done.

TUPE Sidestep 1 - Simply Change Location

Firstly there had always been some latitude to employers in that they were still allowed to vary contracts of employment for Economic, Technical or Organisational (“ETO”) reasons.  ETO however did not extend to workplace relocation.  This meant that employees in a company taken over / merged / insourced /oursourced previously had some security in that they knew they would not be asked to relocate for a reasonable time period after the transfer.  Of course David couldn’t have that so he made location an ETO reason.  This now means that having a location of work stated in your employment contract is no protection at all and incoming employers can now sack everyone post transfer as fast as you can say “relocation, relocation, relocation” by simply moving the offices of the previous company immediately to the other end of the country.  Despite the fact that remote working is ever easier you can now sack vast swathes of employees that used to be employed in one place by insisting they move to another place and offering no relocation package.  Simples

TUPE Sidestep 2 - Simply Change the Job Description

The second major watering down of the legislation that David Cameron achieved is to set up a situation where TUPE now no longer applies if the “service” provided by the previous employer doesn’t match the “service” supplied by the new employer.  The example given by the government is that if previously your job used to be solely cooking food and now it involves simply stocking fridge freezers then you are not a TUPE transferee because the nature of the “service provided” has changed.  This gives the option to the more cynical immoral personnel / HR manager of carefully sidestepping the spirit of the legislation by changing all the would-be-transferee job descriptions to be ever-so-slightly-different.  No one will be shocked to discover that this wheeze of attempting to circumvent TUPE by changing the job description wordings has created some weird and unusal tribunal cases.  Many of which are listed here.  Including...

Anglo Beef Processors UK v Longland – The employer argued that since new technology had speeded up the processing of carcasses Mr Longland’s job was not TUPE but the Tribunal ruled that the introduction of new technology did not alter the nature of the service taken over.

Qlog Limited v O’Brian – Qlog argued that there was no TUPE transfer because the methods of transport had changed but the Tribunal ruled that “There was, following the change of provider, a very different mode of carrying out the activity in question, but the actual activity remained fundamentally the same.”  The EAT in Qlog emphasised that it was “important not to take so narrow a view of “activity” that the underlying purpose of the legislation was forgotten”.

Salvation Army Trustee Company v Coventry Cyrenians Limited ..?  The Judge ruled that “the EAT emphasised that the word “activities” in the service provision change definition must be defined in a common sense and pragmatic way. A pedantic and excessively detailed definition of “activities” would risk defeating the purpose of the service provision change rules, which is, after all, to protect employees’ rights on the change of their employer.”

Clearly Employment Tribunal Judges have decided that if circumventing the TUPE rules is as simple as changing the job description then they'll ignore that nonsense as otherwise it would soon make them redundant too..

...Anyway, it seems to be the nature of the service being transferred that defines whether a job transfer is TUPE or not-TUPE.  Also remember you either aren’t TUPE (in which case you either stay with the existing employer or are sacked) or you are TUPE (in which case you move to another employer) but you can’t be moved to another employer and have your continuity of employment preserved unless you are TUPE.  So ask … because if you’re not TUPE the outgoing employer owes you redundancy…

Bless the Tories... how they care for the workers...