Public Bodies Bill [HL]

Baroness Turner of Camden Excerpts

Monday 9th May 2011 Lords Chamber

[Baroness Turner of Camden]

My Lords, I rise to support my noble friend on this amendment and thank him very much for introducing it. As he rightly says, there is a great deal of uncertainty among public sector workers at the moment. Of course, there is a bit of a campaign about the public sector, as far as I can see, on the part of certain sections of the press, designed to give the impression that public sector workers are so much better off than people in the private sector. If you look at it very carefully, that really is not the case. On the other hand, it all adds to the sense of insecurity that many public sector workers feel. Therefore, it is essential that there should be something in this Bill that makes it clear that when people are transferred they have the protection afforded by the TUPE regulations.

Not to give that sort of protection would be to give the public sector workers, who provide the services that we all rely on, the sense that they are disposable. Our workers are not disposable and must be protected in the way suggested in the TUPE regulations. I therefore hope that the Government this time round feel that they have to support this amendment and that it eventually appears on the face of the Bill.

[Lord Taylor of Holbeach]

My Lords, I am grateful for the opportunity of coming back on the amendment proposed by the noble Lord, Lord Whitty. I am sorry if my prose failed to clarify the situation as well as it might, and I hope that my words and the speech prepared for me provide the clarification that the noble Lord seeks. He used the phrase, “words to that effect”. Let us hope that these words that I am about to deliver are to good effect.

The amendment gives me, as the Minister taking this Bill through the House, an opportunity to say that the Government recognise the valuable contribution made by their staff. We want to be, and feel that we are, a good employer, and staff in public bodies are important for good governance. We are keen to support all those affected by change and are committed to TUPE and COSoP as they currently apply. The noble Lord, Lord Whitty, agreed that extending TUPE is not necessarily the best option for all staff, which is what makes this particular matter more complex than it might otherwise be.

The amendment would require that TUPE regulations apply to any transfer of functions or activities that take place as a result of an order made under the Public Bodies Bill. As I did in Committee, I would like to inform the House why the Government believe that existing protection for staff is sufficient and why it would be inappropriate to accept the suggested amendment.

The purpose of TUPE and the European law that underpins it is to protect staff in circumstances where the business that they work for or services to which they are assigned are to be carried out by a different organisation. TUPE ensures that the staff retain their jobs and conditions with new employers stepping into the shoes of the old. When a change falls within the TUPE definition of “relevant transfer”, TUPE will apply and the staff will be protected. The definition is broad and many changes brought about by the Bill will be covered. However, there may be circumstances where it is uncertain whether TUPE applies or is excluded.

Clause 23 gives the Government the power to provide protection to staff in circumstances where TUPE is not engaged. This is underpinned by the Cabinet Office statement of practice on staff transfers—referred to as COSoP—which provides that, even where TUPE does not apply to public sector transfers, organisations will be expected to apply TUPE’s principles as a matter of policy. I assure the noble Lord that the Government remain committed to COSoP. In practice, such transfers are effected through legislation which closely follows the provisions in TUPE, including the continuity provisions.

Legislative transfer schemes which are used to effect transfers in non-TUPE situations do not always apply TUPE to the letter. For example, some schemes permit greater flexibility in relation to post-transfer contractual variations. This can assist the process of harmonising disparate reward packages, thus reducing the risk of unlawful discrimination, particularly on equal pay claims, and avoiding unnecessary barriers to reform. Where the change does not fall within the definition of “relevant transfer” because the new organisation will be carrying out a function or activity which differs in nature from the old, it would not be appropriate to grant TUPE protection; the reality there is that there is no transfer of employees’ functions—the staff are redundant and should be dismissed and paid the compensation to which they are entitled. I assure your Lordships that, if there is legal uncertainty on whether a function is to be continued, Clause 23 gives scope for TUPE protection to be provided.

It would be inappropriate to accept the amendment because, in the Government's view, the blanket application of TUPE to all those transfers which are effected pursuant to the Bill is not appropriate and could lead to inefficiencies and unintended consequences. The Bill provides a framework for a wide variety of reforms to public bodies. Given this, it is crucial that those involved in transfers taking place under the Bill retain the flexibility to respond to each situation according to the facts. It is necessary to form a judgment in each case about whether the particular facts fall within the TUPE definition of “relevant transfer” and, if not, whether a transfer scheme which follows TUPE principles is appropriate. Staff could otherwise be compelled to move and, perhaps, relocate—even where their work is not going to be continued—and all those involved in the transfer could find themselves subject to restrictions which are not helpful nor apposite to the situation.

I appreciate the contribution made by the noble Baroness, Lady Turner of Camden, and I thank the noble Lord, Lord Whitty, for again bringing this to the attention of the House. I assure them both that I am quite happy to write to them again and will keep them posted on developments under the legislation, if they wish. In respect of Cabinet Office advice in this area, I am perfectly happy to keep all noble Lords informed on this matter. However, in the light of the assurances that I have given, I hope that the noble Lord will feel able to withdraw his amendment.