Prospect success over breach of staff transfer terms
11 Jun 2012
Prospect has welcomed the successful outcome of an Employment Tribunal claim against the Ministry of Defence for failure to consult under the Transfer of Undertaking (Protection of Employment) Regulations (TUPE).
Approximately 80 staff will receive compensation – towards the higher end of the maximum award, which the Tribunal could have granted had the case gone to trial. The maximum ‘protective award’ that a Tribunal can make is 13 weeks’ pay – payable in cases where there has been a total failure on the part of the employer.
The staff affected work at oil fuel depots at: Gosport (Hants); Thanckes (Cornwall); Loch Ewe (Wester Ross); Campbeltown (Argyll and Bute); Garelochhead (adjacent to Clyde naval base); Loch Striven (Argyll and Bute) and Singapore.
MOD transferred responsibility for the operation of its Oil Fuel Depots to the Oil and Pipelines Agency – a MOD sponsored non-departmental public body – in August 2011. Although the possibility of a transfer had been under consideration for some time, there was no notice, no information provided and no formal consultation with the unions – all legal requirements under the TUPE arrangements.
When 16 Prospect members in the OFDs found out they had been transferred to the OPA fully two weeks after the transfer, they were angry and confused: how could the depot managers not have been told, were they still MOD civil servants, and what regulatory framework were they now operating under?
It took several weeks for unions to establish what ‘transfer of the responsibility for the management and operation’ of the OFDs actually meant. Prospect soon came to the view that this was probably a TUPE transfer and meant two things: staff were now OPA employees and MOD had failed in its legal obligation to inform and consult.
Prospect – together with Unite, which represents the industrial workforce at the OFDs – submitted a claim to the Employment Tribunal in November, 2011.
In the build-up to the Tribunal hearing, the parties engaged in conciliation via ACAS. During this process, it was agreed that there had been a TUPE Transfer and a financial settlement was agreed covering the affected staff, plus a few MOD employees whose jobs have disappeared as a consequence of the transfer. The formal settlement was finalised at the end of May.
Prospect national secretary Steve Jary said: “From the outset, we were convinced that MOD had completely messed-up this transfer. Members were left in limbo for months, not knowing who their employer was or whether the safety of the depots (which is our members’ responsibility) was properly regulated. Although the OPA has done its best to recover the position, it has been let down badly by MOD.
“Prospect had no choice but to pursue this through litigation and we have to celebrate our achievement. Working hand-in-hand with our colleagues in Unite, we have secured a significant financial settlement for our members to compensate them for the distress and uncertainty created by MOD’s decision out of the blue to remove them from the civil service. We now need to move forward and build a constructive relationship with the OPA so we can secure our members’ future with their new employer.”