The trade union movement may soon have cause to thank
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17 Eastbourne Council binmen who successfully persuaded an industrial tribunal to reconsider their dismissal in favour of a private contractor.
Last year 17 binmen lost a claim for unfair dismissal after Eastbourne Council contracted out its street cleaning work But they fought on, and now the London Employment Appeal Tribunal has told the Brighton tribunal to think again.
The Transport and General Workers Union sees the London decision as at least partial vindication for its interpretation of the Transfer of Undertakings (Protection of Employment) Regulations (TUPE). These were enacted as the result of the European Community's Acquired Rights Directive issued in 1977; they became UK law in 1981.
The Eastbourne case was a by-product of competitive tendering; the men lost their jobs in 1990 after Eastbourne Council contracted out street cleaning work to private contractor Onyx.
At the time it seemed they had little chance of winning any compensation as the Government had failed to incorporate protection for public sector workers within its TUPE bill, But since then it has had its knuckles rapped by the EC, which ordered it to update the UK's TUPE regulations and extend their protection to public sector workers.
As a result, this autumn's Trade Union Reform and Employment Rights Bill will include new clauses aimed at enacting TUPE in the spirit in which the EC intended A victory at Brighton for the Eastbourne binmen could result in a flood of claims for compensation or reinstatement from workers who lost their jobs during the competitive tendering frenzy of the eighties.
In January the European Court of Justice ruled that an Irish housewife was entitled to retrospective payments of family allowance going back years because the Irish Government had failed to enact an EC directive calling for equal payment of family allowances to men and women.
Following this precedent, the Brighton tribunal could order Eastbourne Council to pay compensation to the men, or reinstate them in similar positions.
But why did the London Employment Appeal Tribunal arrive at its decision? It would seem that tribunal members are keeping an eye on Europe and the effects of any decisions made in similar circumstances in other member states. In particular, the London judge described the Brighton tribunal's decision as "flawed" because it had failed to take into account recent decisions made in Holland and Italy which had ruled that workers should have been transferred into new jobs and not made redundant.
The London tribunal also ruled that some of the facts had been misrepresented, including a presentation involving the number of parties in the dispute. Last year's Brighton tribunal had considered there to be three parties involved: Eastbourne Council; the council's direct service organisation (DSO); and Onyx. But the London tribunal could not accept that the DSO is a separate entity from the council.
The TGWU is optimistic for the outcome of the new hearing at Brighton: ''As far as we are concerned we are on to a winner," says Tom Douras, the TGWU's London regional officer for public services.
No date has yet been set, but it should be soon. "It is a very important case so the judges are quite keen to get it out of the way quickly because the Government has got itself in such a pickle over market testing," says Douras.
Much of the discussion at the London tribunal centred on the TGWU's submission that the Government is empowered to carry out EC directives properly and that responsibility is shared by local government as a body of the state. Douras reckons the present confusion is not helping anybody: "We think the Government should sit down with contractors to organise a settlement. The whole field is in a mess."
Further confusion has just been created by the Employment Appeal Tribunal's rejection of an appeal from 107 Essex hospital cleaners. They were protesting against worsening conditions when Health Care Services won a contract from Basildon and Thurrock Health Authority. The union involved, UNISON, intends. to fight the case through to the European Court.
But are private contractors getting frightened off by the "mess" over TUPE? "There is a possibility of a new decision at Brighton," says John Basford, marketing director of Onyx. "But the judgement in London didn't actually disagree with the original decision."
However, a decision in favour of the dismissed binmen would cause Basford to have a "rethink" about applying for council contracts. At the moment the company is still actively tendering to councils, Our solicitor says that we still have a case," says Basford. "We are working closely with Eastbourne Council but it's in the lap of the gods. My own opinion is that it will go to the European Court."
His own company would welcome clarification and for the moment Basford says Onyx will not be put off by cases like this.
Eastbourne Council is not prepared to comment on its dispute with the binmen, except to say that its case will remain the same when the tribunal sits again in Brighton.
In the mainstream transport industry there have been some famous TUPE disputes, most of them involving the NFC group and companies to whom it has lost contracts. For its part, the Road Haulage Association has not been involved in any TUPE cases and operations director Tim Inman says the RI-IA has yet to reach a policy view on the regulations.
Victor Ross, human resources director at BRS, says that three cases involving NFC companies have now been settled out of court with "suitable arrangements reached by all parties" including the drivers and their trade unions. The most important of the three cases centred on a dispute between NFC company Tankfreight and Wincanton, which won a five-year/£75m Texaco contract on which Tankfreight had employed 300 drivers. NFC also challenged United Transport Tankers to take responsibility for 35 drivers on an Esso contract, and took on car transporter Walon which won a 40,000-car Toyota contract from BRS.
Although no tribunals reached decisions on these cases, Ross believes that several major European cases have demonstrated that the TUPE regulations can apply when contracts change hands, as well as when whole companies are taken over.
One way or another the Brighton tribunal will set a major precedent in UK industrial relations law: the binmen of Eastbourne may soon have cause for further celebration. D by Patric Cunnane