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RDP access for staff likely to be made redundant for ETO reasons following transfer on TUPE terms.

PCS has held several discussions with the Ministry of Defence about ways of helping our members avoid redundancy in an outsourcing situation where the new employer has identified likely economic, technical and organisational (ETO) redundancies as a consequence a TUPE transfer.

The Cabinet office document “Good Practice for Managing the People Consequences of Outsourcing and Privatisation” obliges departments to ensure that every opportunity is provided to staff likely to be made redundant to find alternative employment, should they wish to do so.
 

Due to a number of situations over recent years (but the DII Infrastructure outsourcing programme in particular) PCS has held talks with the minister for equipment and support in January 2009, at which he agreed that the department would consider additional redundancy avoidance measures.


Attached to this branch briefing is the consultation resulting from this engagement with the department.
 

Please can you email your comments to Paul Barnsley at paulba@pcs.org.uk, Rob Bowers at Rob.Bowers366@mod.uk and K C Jones at PCSUNion-VicePresident@mod.uk not later than 14 September 2009.

 


Consultative Document


Introduction

1. This paper sets out the Department’s proposals for allowing access to the Redeployment Pool (RDP) for a period of up to 6 months prior to transfer, to staff who are likely to be made redundant for Economic, Technical or Organisational (ETO) reasons following transfer to a new employer.

Background

2. The Department has held several discussions with the Trades Unions about ways of helping their members to avoid redundancy in an outsourcing situation where the new employer has identified likely ETO redundancies as a consequence of their proposals for delivery of services. A small number of situations have arisen over recent years but the DII Infrastructure outsourcing programme in particular has raised the profile of this issue to the extent that Min (DES) held a meeting with PCS and Prospect in January 2009, at which he agreed that the Department would consider additional redundancy avoidance measures. We understand that the preference of the Trades Unions is, if redundancies have to be made at all, that the Department makes the redundancies prior to the transfer. Since the dismissal of an employee by the transferring employer if the sole or principal reason is the transfer itself would be treated as unfair and in contravention of TUPE legislation, however, this approach has not been adopted by the Department.

3. The Cabinet Office-published document “Good Practice for Managing the People Consequences of Outsourcing and Privatisation” obliges Departments to ensure that every opportunity is provided to staff likely to be made redundant to find alternative employment, should they wish to do so. This practice does not contravene TUPE legislation. As a result, MOD already provides access to the Redeployment Pool to staff facing a post-transfer compulsory redundancy situation for a period of up to 6 months before Vesting Day. This concession permits staff priority consideration for alternative posts for which they may be suitable and may apply. The provision has been addressed in both the “Outward TUPE” Policy, Rules and Guidance (PRG) document and the RDP PRG, but it has not been widely publicised. It is now proposed that staff are made more readily aware of this facility and are given the option of being added to the Redeployment Pool for a period of up to 6 months prior to transfer if they wish to seek an alternative post in the Department in order to avoid redundancy.

4. It is equally important that we make it clear to staff that there is no compulsion on them to be added to the RDP. If they prefer, they may opt not to be added to the Redeployment Pool, but this then leaves them to seek alternative employment without the priority consideration the RDP affords them; and, if unsuccessful prior to Vesting Day, they remain in scope and will transfer to the Contractor, as planned. Following their transfer there will be the continuing potential of them being made redundant, should they be selected from the new employer’s wider workforce.

Process
5. In order to qualify for access to the RDP, staff who are assigned to transfer on TUPE terms must have been identified by the proposed new employer that, for ETO reasons, they are likely to be made compulsorily redundant within 12 months of Vesting Day, as a result of a redundancy exercise which is likely to affect them directly, e.g. in their grade and/or at their location. This may be triggered at a number of different stages, eg by information about how the current service will be transferred and sustained submitted with the bidding process or at some other point, but it must be a firm indication that redundancies are likely to be made within the first 12 months of the contractor undertaking the work to be transferred. If they are not identified in this category, or if planned redundancies will not take place until at least 12 months after transfer, they will not be given access to the RDP. Examples of situations giving rise to potential redundancies might involve a relocation of the work (where the existing site is not being made available to the new service provider, for example) outside the travel to work area; or a planned reorganisation immediately after transfer resulting in a reduced requirement for staff in order to provide the contracted-for service.

6. There is no compulsion on staff to be added to the RDP: if they prefer, they will continue to be transferred with the likelihood they will be considered for redundancy. The new employer must undertake any redundancy exercise fairly, therefore may offer opportunities for redeployment as an alternative to redundancy, or selection for redundancy may be made inclusive of staff already employed by the company and transferred staff. In such circumstances, redundancy may not be offered. Staff need to be aware, therefore, that even where an ETO-related change takes place, redundancy by the contractor is not guaranteed.

7. For the purposes of direct avoidance of redundancy, all staff who opt to be added to the RDP in these circumstances will be added, regardless of the likelihood of them identifying an alternative post. In other words, the normal restriction on staff (particularly those in non-mobile grades, including Skill Zones) being added to the RDP only where there is a likelihood of a suitable alternative opportunity being identified, is relaxed in these circumstances. For staff who are successful in identifying an alternative post through these arrangements, in recognition of the redundancy avoidance measure, Countersigning Officers must waive the requirement to spend a minimum of 24 months in post before seeking to move to a subsequent post on level transfer. The requirement to serve at least 2 years in the current grade before seeking promotion or advancement, however, will not normally be waived.

8. Detailed guidance for TLBs to issue to Project Teams, including a Flow Diagram and a model letter to issue to staff in these circumstances, has been prepared and can be found at Annexes A, A-1 and B.

Equality and Diversity Impact Assessment
9. This proposal has been assessed in accordance with the Department’s Equality & Diversity impact assessment procedure:

Part 1 Screening Assessment undertaken - no adverse diversity impacts have been identified.

Timescale for Implementation
10. Subject to satisfactory completion of consultation, it is proposed to introduce this concession with immediate effect.

Conclusion
11. Access to the Redeployment Pool for staff who are likely to be made redundant following transfer to a new employer will enhance their opportunities of identifying a suitable post within the Department and thereby avoiding redundancy. There will be no compulsion on staff to use this facility, however, and some may prefer to transfer and work for the new employer, whilst others may prefer to be in the field for potential redundancy. This concession allows staff greater choice and, if they wish, the opportunity to avoid redundancy.

 

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