A dispute between leading outsourcers over staff transfer
regulations leaves 60 IT support staff "in limbo".
IT staff and trade unions are planning to take outsourcing
companies, Compaq and Atos Origin, to employment tribunals in a
dispute over employment protection laws that has left 60 IT support
staff facing the prospect of redundancy without compensation.
The suppliers are embroiled in a row over which firm is responsible
for employing 30 former Atos support staff in the UK and another 30
overseas, following a decision by Lucent to transfer an outsourcing
contract from Atos Origin to Compaq, now part of
Hewlett-Packard.
The disput goes to the heart of Europe's employment protection laws
and the UK's Transfer of Undertakings Protection of Employment
(Tupe) regulations.
These guarantee staff employment under existing terms when their
work is outsourced to a third party.
With the continued boom in the outsourcing market the dispute
highlights the legal uncertainty surrounding the Tupe regulations,
and the risk facing IT departments that they will lose access to
experienced staff, when they end an outsourcing agreement early or
transfer work to another firm.
Unless Compaq and Atos can come to some agreement, Atos support
staff will be left in limbo, with no jobs and no redundancy
payments, union officials said this week.
"These people are going to be 'not employed' for some time. If they
go down to the benefit office and they are asked whether they are
unemployed, how can they answer?
"Both firms are saying they are definitely employed by the other,"
said Graham Briggs, national organiser of the Association of
Management and Professional Staffs.
The dispute began in April when Lucent decided to end its
outsourcing contract with Atos Origin and to transfer the work
solely to Compaq. Both suppliers had been contracted to provide
desktop and network support services to Lucent in July 2000.
Atos managing director, Paul Bingham, told Computer Weekly that
under Tupe regulations, Atos staff in the UK, Netherlands and
Germany, should automatically transfer to Compaq, but Compaq was
blocking the move, he said.
Compaq has since e-mailed the Atos staff affected, denying
responsibility for their employment.
Compaq argues that Tupe rules do not apply because it plans to use
a different operational model from Atos, services fewer users, and
will provide services in fewer countries.
But Bingham said that Atos' own legal advice shows that Compaq is
obliged to hire the Atos staff.
"We took legal advice from our internal lawyers. When Compaq was
not prepared to agree it was a Tupe transfer we also sought
external legal advice both on a pan-European and individual country
basis.
"We have taken advice in Germany, the Netherlands and the UK. All
the legal advice that we have received has said that this is a Tupe
transfer," Bingham said.
Employment lawyers say that the case highlights the confusion
arising from conflicting Tupe case law, and will place further
pressure on the government to clarify the legislation. A government
update on Tupe is expected by the end of the year.
Julian Hemming, partner in employment law at Osborne Clark said,
"Until the government does that we are going to have arguments
running on and on."
Progress of the dispute
July 2000: Lucent outsources its infrastructure and desktop
services operations to Atos Origin and Compaq
April 2002: Lucent informs Atos of plans to end outsourcing
contract and to transfer the work to Compaq, following difficult
trading conditions in telecoms. Atos staff are told that they will
transfer to Compaq under the Tupe rules
19 July 2002: Atos e-mails affected staff confirming that
under European law they should transfer to Compaq. Despite lengthy
negotiations Compaq has refused to co-operate: 30 Atos IT staff in
the UK and 30 overseas face redundancy
22 August 2002: Compaq e-mails Atos staff explaining its
refusal to hire them
September 2002: Trade unions begin preparations for an
industrial tribunal case against Compaq, Atos and Lucent.