More and more employees across the UK are working for large, international, service providers. The move to privatise and/or outsource services is a trend which started under Thatcher in the late 1980s.
Now everything from cleaning to care provision, from road maintenance to ferry services are out sourced to huge global conglomerates. The recent spat over Calmac is only the latest in a long and ever increasing line of outsourcing.
So what does this mean for the employee?
The reality for many employees is that their employment switches from one company to the next on a regular basis. Working practices, terms and conditions are only settled with one company for them to lose the tender for the work and all employees are transferred to someone else.
The problem with the tendering process is that more often than not it is the tender which will carry out the service for the lowest amount of money who are successful. Inevitability, the result of this is a weakening of employees’ terms and conditions. At the same time there is an expectation for the service to be provided quicker, cheaper and without the same investment or quality of materials. This has a detrimental effect on workforce moral and the health of individual employees.
As an example, if company A contracts with company B to clean its offices but decides to change to a new cleaning company (company C), this may result in a TUPE transfer from company B to company C of any employees whose principal purpose is carrying out the activities that are transferring. The upshot is that company A may end up getting the same cleaners back despite the change in service provider.
The Transfer of Undertakings (Protection of Employment) Regulations (TUPE) were passed by the UK Government in 2006. The hope was that employees caught up in this ongoing cycle of transfer after transfer have their terms and conditions protected. It was an attempt to increase consultation obligations on the employers and protect the rights of workers.
Under the TUPE Regulations, existing terms and conditions transfer with staff to the incoming employer and they remain the same as they were with the outgoing employer.
However, in recent years, the 2011 Tory/Lib Dem Coalition sought to reduce the rights of employees during the transfer process as part of their wider “Red Tape Challenge”.
From January 2014, the activities carried out under outsourced or tendered work must be “fundamentally the same” for TUPE to apply. This means that if the service being provided changes in a substantial way those employees providing the service before the change may be made redundant as their employment will not transfer to the new service provider.
It continues to be the case that changes to employees’ terms and conditions if the sole or principal reason is the transfer are void. However, previously, changes to terms and conditions for a reason ‘connected to the transfer’ were also invalid, but this has now been removed. This significantly reduces the protection for employees as it will be very difficult to prove that the reason for the change in conditions was specifically related to the transfer. Also, the employer will have a much wider range of defences as to why they require to change terms in conditions. It is rare that changes are made to improve conditions for workers and are often used in an effort to reduce wages, hours and extra payments for anti-social hours and weekend working.
Another common change when working for service providers is a change in workplace location. The 2014 regulations specifically state that such a move may now to considered as a fair change. This has the potential to cause huge upheaval to workers including increased travel costs, increased child care costs, impacts upon caring responsibilities and increases in working time. All for the same pay packet at the end of the month.
If you are an employee who workers for a service provider and are currently undergoing a TUPE transfer process please ensure that you are actively involved in all the consultation meetings taking place. Should you require further information on your rights you should contact your trades union. If you are not a member of a trades union please consider joining. Collectivism and standing together with your fellow workers makes your voice stronger, particularly if you are concerned about changes to your terms and conditions.
