I always knew there was a very good reason why I had no ambition to be an employment lawyer. It meant grappling with the likes of The Transfer of Undertakings (Protection of Employment) Regulations 2006 or TUPE as it is known affectionately by those who ply their trade plumbing its impenetrable depths.
TUPE owes its conception to the in-vitro services of the Acquired Rights Directive ejaculated by the European commission in 1977. After a suitable gestation, Britain gave birth to TUPE.
It sounded good – the regulations were designed to protect the rights of employees when ownership of their employment was transferred to another party. You may wonder where I am going with this – follow me on a gentle meander…..
Darlington Council, as part of the Local Authority cutbacks, announced that they were cutting in half the number of beds they provided for adult ‘homeless’. They didn’t actually provide those beds themselves; they had a contractual arrangement with the Salvation Army and another local charity to do so. They merely provided the funding. Now the funding was to be slashed in half – ergo, either each charity got half the funding or half the number of beds could be provided – someone somewhere was going to lose out.
Now one of the ‘upsides’ of the Big Society is that there is less scope for the Human Rights legislation to intervene – the Human Rights Act only binds public bodies and companies providing government services – a very grey area, prisons are accepted as being a government services but care homes are not, so one of the upsides of the Big Society shift away from Statism is that we should see less of the headline cases whereby individuals are awarded massive sums for infringements of their ‘human rights’ – pace the £203,000 award to a gypsy warden for ‘stress’ arising from his work – he was able to claim because he was ultimately employed by Hereford and Worcester council.
However, a glaring ‘downside’ to the ‘Big Society’ has been revealed by the outcome of Darlington Council’s decision to cut their funding. They issued a new tender for the provision of hostel accommodation. This time for a total of £190,000.
A small local charity, the 700 Club, headed by the Reverend Dr John Elliston, decided to enter their own tender. Both the Salvation Army and the 700 Club had previously provided half the bed places each – now they were in a race for the slashed budget.
They were successful – hurrah! Small local charity to provide small local service to homeless people – the very epitome of the Big Society.
Except that big national charity – to wit the Salvation Army – didn’t take too kindly to being ousted in this manner. With their homeless facility at Tom Raine Court now surplus to requirements, they informed their employees that they wouldn’t be paying any redundancy payments because under TUPE legislation, they felt that the little 700 Club were liable.
Yesterday a Newcastle tribunal upheld that view. The 700 Club, small local charity, must now hand over £250,000 to the Salvation Army as the price of having won the tender to help the homeless in Darlington – it dwarfs the contract awarded to them by Darlington Council and risks wiping out the Charity.
Dr Elliston said the legislation undermined the principles of the Government’s flagship Big Society concept by putting smaller organisations at a disadvantage when competing with larger counterparts.
“At a time when Government is urging a greater dependence on voluntary organisations, this judgement must stand as a cautionary warning,” he said. “Any organisation that says yes may quickly realise that the chalice they now hold is a poisoned one.”
Presumably if the Salvation Army had won the contract then they would have been liable for the redundancy payments for the 700 club staff. Meanwhile, there are still only half the number of homeless beds…..