Is TUPE Loopy?

TUPE the "Transfer of Undertakings (Protection of Employment)" in my view should probably stand for "Totally Unwanted Piece of Employment" law. I knew it existed but I suspect like so many of you, it never occurred to me that it would ever affect us. And then bam! - it comes along and gives you an almighty smack around the face when you are least expecting it (or wanting it for that matter).

The rub is that legislation was revised in 2006 when it was extended to include "service provision changes". That suddenly meant that if you worked in a service industry such as marketing, advertising or PR, you could be liable to take on staff from incumbent agencies and on the same terms as they were originally employed when clients, inevitably, move from one provider to the other. This is absolutely crazy. Often the reason clients change service providers is because they are either unhappy with the service they are getting or want a fresh team with fresh ideas or even a combination of both. And probably more importantly given current market conditions, agencies could land up with staff that they simply don't want or can't afford.

On the other side of the coin this can be used as a convenient way of off-loading the 'dead wood' - saving the expense of politely showing people the door. Of course, the savvy Directors among you will be quick to ensure that your 'rising stars' would not inadvertently fall within the rules of the legislation. But it does create a whole new downside risk when pitching for new business, especially when the incumbent is small and losing clients. Does it effectively create a potential liability for clients who take on a small PR agency and find that moving agencies suddenly has an unknown price attached to the pitch process?

Don't get me wrong, I am all for making sure that employees aren't exploited for the benefit of businesses, but I think this is one step too far. What happened to good old loyalty and duty of care? And the employee who is transferred between employers can hardly relish the prospect of arriving at their new company knowing they weren't chosen but were foisted upon them?

The new TUPE rules were criticised in The Lawyer a couple of years ago, which is ironic because in my view the only winners here are the lawyers (let's face it, the fees earned just explaining the legislation are likely to net them at least £1,000). And the losers? Well, pretty much everyone else really.

PD