TUPE changes - race to the bottom

I was speaking at the STUC Congress in Perth today supporting Composite H on employment rights with a focus on the UK Government's plans toweaken the TUPE regulations.

This is my contribution to the debate.


Congress, this is a lengthy composite because the attack on employment rights from the UK Government is becoming a very long list indeed. It has nothing to do with removing real regulatory burdens, but everything to do with a cynical, ideological attack on the working poor. In cahoots with the worst employers they want to create a cowed workforce scared to challenge the boss.

And where is electoral mandate? Neither party of the ConDem coalition included any of these changes in their manifesto, they were not a part of the coalition agreement, and there is no popular mandate for them. Tellingly, they are not even supported by employers, with less than 1 per cent of those cited in the BIS Call for Evidence in 2011 saying that unfair dismissal legislation put them off hiring new employees. The best employers realise that an insecure workforce is a not a creative engaged team and insecurity is no way to build a modern economy. It also ignores the fact the UK already has one of most deregulated labour markets in Europe.

Our amendment focused on the TUPE proposals.

The service provision change, employee liability information and a static approach to pay and conditions are a classic example of ideology, particularly anything emanating from the EU, topping common sense. The reaction from legal colleagues, even from those representing employers, has been hostile – even those who frankly admit that uncertainty means bigger fees. The Law Society response says: ‘The government has mistakenly labelled clarity as "gold plating". Repealing the 2006 amendments would only increase uncertainty, and thus the number of disputes. Businesses and employees both want certainty.’

The number of EAT and Court of Justice cases on service change have fallen since 2006. Under these plans legal and redundancy costs for employers and the state will simply increase. The uncertainty will go on for years as there will inevitably be a challenge on compatibility with the Acquired Rights Directive.

And as usual it is the economically weakest in society that suffer the most. Even the Government’s own Impact Assessment says these plans are likely to disadvantage the low paid (especially women), and those with disabilities.

The law of unforeseen consequences may also apply in this and other attacks on workers’ rights. If the government takes away legal redress, then it is inevitable that workers will have to respond industrially to protect their jobs, pay and conditions.

So where did this daft plan come from? I suspect this was one of those cowboy employers who bent the Prime Minister’s ear at the dinner table. You know the ones – dining with the PM at the most expensive restaurant in London. No not Claridges – No10 Downing Street. Dinner at £50,000 a go in donations to the Tories and you can trump the common sense of the sensible business and legal voice in the country.

And it’s not just the UK Government that can get a bit muddled when it comes to staff transfer. Scottish Parliament Bills delivering public service reform often have very poor staff transfer provisions. In reorganisation after reorganisation we are constantly reinventing the wheel because officials struggle to understand what is required. This could be dealt with in Scotland with a workforce framework, as UNISON has proposed, for organisational change that includes common staff transfer provisions.

No one will be surprised that not one provision in these changes strengthen workers rights. It is here that TUPE needs to be improved, particularly over pensions and public administrative transfers.

Congress, the changes to TUPE along with the wider attacks on employment rights will simply lead to a further race to the bottom, with companies using low wages to compete for contracts in the public and private sector, rather than by quality of service, efficiency or innovation. It will create major uncertainty for businesses, workers and generate needless and costly litigation.

It says much more about how this Government despises the workforce, ignores sensible business voices and through uncertainty creates a vicious circle of economic decline.

TUC Campaign Employee rights stop employer wrongs.

IER and UNISON responses to TUPE consultation.