Prospect Success over MOD TUPE breach

Prospect has settled a Tribunal claim against the MOD for failure to consult under the TUPE Regulations. Approximately 80 staff will receive compensation which is towards the higher end of the maximum Protective Award which a Tribunal might have granted had the case gone to trial.

The MOD transferred responsibility for the operation of the Oil Fuel Depots to the Oil and Pipelines Agency – a MOD-sponsored Non Departmental Public Body – in August 2011. Unfortunately, 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 Transfer of Undertaking (Protection of Employment) Regulations (aka TUPE).

When 16 Prospect members in the Oil Fuel Depots 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 of this, were they still MOD Civil Servants, what regulatory framework were they now operating under? It took some weeks for the unions to establish what ‘transfer of the responsibility for the management and operation’ of the OFDs actually meant. But we soon came to the view that this was probably a TUPE transfer and this meant two things: the staff were now OPA employees and the MOD had failed in its legal obligation to inform and consult.

Prospect – together with sister union Unite, which represents the industrial workforce at the OFDs – submitted a claim to the Employment Tribunal in November. Unusually, such claims are submitted in the name of the unions: failure to inform and consult is a collective issue. And the remedy is for the payment of a Protective Award to the ‘Affected Persons’. 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.

In the course of the build-up to the Tribunal hearing (originally scheduled for late March), 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 70+ OFD staff, plus three MOD employees whose jobs have disappeared as a consequence of the transfer. The formal settlement was finalised at the end of May.

Prospect negotiator Steve Jary said “From the outset, we were convinced that the MOD had completely messed-up this transfer. Members have been left in limbo for months, not knowing who their employer is or whether the safety of the depots (which is our members’ responsibility) was properly regulated. Although the OPA has been doing its best to recover the position, it has been let down badly by the 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 at least secured a significant financial settlement for our members to compensate them for the distress and uncertainty created by the 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.”