A personal reflection by Dave Potts CEO
The Transfer of Undertakings Protection of Employment (TUPE) regulations, quite rightly are a number of legal processes designed to safeguard the rights of an employee when he or she transfers to a new employer. The loss of a contract, by way of a change of supplier can and often does have a marked effect on any employee, not the least in terms of concerns about their pay, conditions and very future.
All right-minded companies whatever the sector, have a legal and moral duty to uphold the regulations to the full and to make the transfer as unproblematic as can be. If there are variations these are consulted at length with specific reasons allowed for the changes. In nearly all cases the employees terms are safeguarded and the employee continues as normal. In national contracts that fluctuate between providers every three to five years longstanding employees get used to the process being repeated. This is particularly prevalent in the security industry.
GSTS was set up to be a real alternative to the bad practices and poor service levels of many national security companies. Over the years many of these companies had grown too big too soon and in order to service the demands of rotas had relied on second, third and fourth party suppliers to provide untrained staff to fill positions at whatever cost. Often this had to be condoned by long suffering clients as it was felt an untrained body on a site was better than the site being undermanned. Effectively the client was paying for something they had never formally agreed to and were not getting the standard of officer or cover they were entitled to. All the time these national companies were content to take the money and perpetuate these practices.
Within the sphere of TUPE, whilst there are the safeguards for the employee, there is little if no protection for the new employer. Particularly prevalent within the security sector is the widespread use of relocating good staff prior to the TUPE or dumping underperforming staff on the new employer. During the course of the consultation a full list of employees are given to the new employer, and this details all the individuals pay and conditions and is supposed to inform of any liabilities that may be relevant.
During 2021 GSTS was awarded the largest private security contract in the NHS. Staff were eligible to transfer from one global FM supplier and one national security supplier. Due to the poor service levels and under manning by third and fourth party suppliers we found ourselves in the position of having to consult with seventy staff eligible for TUPE and a similar number that needed to be recruited and trained immediately to be able to man the contract from day one. We had less than six weeks to achieve this.
Five weeks before we were to start the contract, we became aware that a gentleman who was a previously a security manager had been dumped into the contract. He had nearly 30 years’ service and was on a salary in the region £40,000. He was dumped into the contract working with officers who were at the time all on the National Minimum Wage. In addition to his service and salary he had enhanced company sick pay and other conditions relevant to his managerial status. He had not been included on the previous liability information.
We of course queried it with the national supplier, but more importantly for us we became aware that an officer Mr Ali, who had worked on the site for an agency for three years had been cynically moved from the site to give the impression that there was a live vacancy on the site. Mr Ali had been well thought of by everyone, not the least the client’s staff who he was in daily contact with.
Prior to the start of the contract, we contacted the national company several times and asked them to speak to their employee. We decided not to raise this formally with the client even though we were aware that the client had protocols that prevented new staff being put on site without consultation. This again had been due to poor service levels in the past.
The whole matter ended up at an Industrial Tribunal and there was a three day hearing when evidence from all parties was given. Our argument that he was dumped was not accepted and the court found against us. We ended up having to pay the gentleman a full years wages, even though he had worked for us for less than one hour.
It was evident to any observer what had really happened but to me, albeit it was a financial blow, it was more a full vindication of what we had set up GSTS for. The fact that we had won this massive contract and not stooped to the tactics of a national provider was to a certain extent music to my ears. The outright hypocrisy of these companies taking payment for poor often non-existent services, and then treating their employees so badly was the exact opposite of what we stand for.
This was borne out after the judge had made his findings known and there was a recess before further deliberations on the damages. There were three barristers present, ours, the national companies and a barrister for the gentleman concerned.
Whilst everyone was trying to assimilate the verdict the barrister for the gentleman turned to the others and with a reference to the verdict and to us said ‘Principles before commercials”.
In those three words he had summed up what GSTS is all about.
Two weeks after we began the contract, we were able to trace Mr Ali. He had been unemployed since being removed and had been struggling to look after his family. We invited him to join GSTS and he is now back in the same position doing the excellent job he has always done. That’s him in the picture.
For us it will always be Principles before Commercials.