Frank and angry exchanges we have seen today, 21st December, reveal a new row brewing in the wake of the Alcohol and Drugs Partnership’s award to Addaction, a company new to Argyll, of a contract to provide addiction services across Argyll & Bute’s mainland and islands.
Addaction itself is alleged – on substantial documented evidence – to have been playing ducks and drakes with TUPE rules.
‘TUPE’ is the acronym for Transfer of Undertakings [Protection of Employment] Regulations 2006, the means by which the jobs of staff employed by one contractor are protected by switching them to the employment of a successfully competing bidder when contracts are tendered.
The current Chair of ADP, Christina West, is advised by a senior member of one 3rd Sector local service provider to consider correcting an email she sent to local MSP, Michael Russell, on 18th September where assurances she gave him were ‘completely wrong’ – that the incoming contractor, Addaction, would observe compliance with TUPE in respect of protecting the jobs of staff at the existing local service providers whom it was replacing.
The writer is one of the majority who have found that the assurances given have not been observed; and one of many who are making their positions clear to Addaction and to ADP.
The redundancy letters from Addaction
On 5th December, staff employed by the local 3rd Sector groups received what we considered to be a legally improper letter from Addaction – which was also contradictory. On 11th December published this letter in an article here, entitled The real ‘relationships difficulties’ at the heart of Argyll’s dysfunctional Alcohol and Drugs Partnership
It began by formally accepting its responsibilities under TUPE, saying without equivocation: ‘Addaction have agreed that the terms of the Transfer of Undertakings (Protection of Employment) Regulations 2006, apply to this transfer. Under TUPE we are obliged to protect your terms and conditions of employment.’ [Ed: our emphasis.]
It went on formally and unequivocally to make most of them redundant, offering them support during ‘this difficult and unsettling time for you’ saying: ‘I would like to reassure you that Addaction staff will do all that we reasonably can to support you during this period. Please be reminded that Addaction has an Employee Assistance Programme which you are free to access during this time.’
So on one Addaction was assuring these people that it recognised that it was ‘obliged to protect your terms and conditions of employment; and on the other it was saying: ‘Your current post does not fully or substantively exist within the proposed Addaction structure’ – effectively that, whatever our obligations, we are not protecting the terms and conditions of your employment at all.
We are on the record then as finding it astounding that this communication preceded these staff becoming the responsibility of Addaction, yet it was assuming the right to make them redundant when it did not employ them and had no right to do so.
It was a bizarrely incompetent mess.
Now it has come home to roost, with the ADP Chair’s assurances of local job protection to local MSP’s attacked with scorn by those who have no idea where this leaves them in job terms. One simply dismisses Addaction’s statements as ‘lies’.
The Addaction hand off
And, for those who have found themselves propelled into this experience beyond their, it must feel like a bruising rugby match running well into extra time.
On Friday, 19th December, Addaction wrote to one member of staff of a local service provider: ‘We have sent you a letter that informs you we do not accept that TUPE applies to the role in which you are currently employed. The letter states that you have not been matched to any of the roles which we have within our structure and will not join Addaction when the contract commences. Your employment will remain with XXXX [3rd Sector Group's name] and it will be up to them whether your role will remain with them or if they make you redundant. Any redundancy payment will be made by XXXX [3rd Sector Group's name] and not Addaction.’
This shows Addaction moving to duck out altogether, moving from the obligations accepted in the ‘redundancy,’ letters to throwing back upon the already much abused 3rd Sector local groups the responsibility for redundancy payments.
One wonderfully logical communication we have seen replies briskly, in relation to this Addaction ‘Dear John’ attempt:
‘I fully accept that my role will not transfer. However, under the TUPE regulation I will transfer to Addaction on 1st January 2015. It is then for you to go through a formal redundancy process under the changes in the workforce allowed for under the TUPE regulations.
You are confusing the ‘role’ with the ‘person’.
‘I do not, therefore, accept the statements in your e-mail and expect you to go through formal redundancy processes in due course.’
This shows a level of intellectual analysis beyond both the ADP and Addaction.
The Trade Union view
A representative of the Trade Union, UNISON, wrote to Addaction directly on 5th December [the day Addaction sent out its redundancy notices], saying: ‘I am concerned that you indicated yesterday that you did not believe all staff were covered by TUPE under this service provision change, I am at a loss to see what staff in the existing services are doing if not supporting the existing service. I also have never come across a TUPE transfer were measures have been individualised, I have seen all staff getting a copy of intended measures letter but not one individual to each of them.’
Interestingly, for the light it sheds on Argyll and Bute Council, one of ADPs parent bodies, the UNISON representative goes on to say: ‘UNISON is centrally involved in the integration of social care agenda in Argyll & Bute and we have already raised concerns with regard to the procurement regime and its light touch on labour standards and industrial relations. Indeed I previously raised specific concerns about one of the current providers and the need for the addiction partnership to monitor that provider more closely. The handling of this contract is one that UNISON is monitoring closely as we believe it is an important indicator of how externalised care services will be handled going forward.’
Addaction did not reply to UNISON. We have seen email from UNISON asking for a response on both 9th and 12th December. Addaction replied on 17th December.
On Friday 19th December, the JNISON representative wrote to the 3rd Sector service providers saying:
‘If you have been designated to TUPE transfer then I hope things are becoming clearer for you following interviews yesterday.
‘If you have not then I suggest you appeal the decision to Addaction and ask your current employer what their intentions are.
‘It would appear according that there may be developments with regards to the transfer. I will email Christina West the newly appointed Chief Officer of the Integrated Social care partnership asking that UNISON and staff are kept in the loop.’
The deceptive confusion
It is also clear from a statement in the same shrugging-off email from Addaction as cited above, that they had indeed, in the wake of the award of the contract, given all the local staff to understand that they were to transfer to Addaction. This is effectively admitted in this Addaction email, alongside another soft shoe shuffle in the opposite direction:
‘Joiner details were passed to all staff during the 121 meetings [Ed: These were post-contract award one-to-one session, some by telephone], at the point we were learning about people’s role and before it was clear who was an was not in scope to transfer. You are not in scope as your role is not wholly or mainly related to the work we are commissioned to provide. I will destroy the joiner details form that you have sent containing your personal details as Addaction do not require this information.’
At least this email inadvertently confirms the fact that some or many of the ‘Joiner details’ were submitted as invited, even if no record of those submissions will clearly now remain – creating more potential wriggle room.
Another angry victim of what appears to have been deception has pointed out Addaction’s inadequate understanding of TUPE rules, sharing with colleagues some key paragraphs from those rules:
‘Any dismissals will be automatically unfair, where the sole or principal reason for the dismissal is the transfer. This is also the case where the sole or principal reason for the dismissal is a reason connected to the transfer, unless it is for an economical, technical or organisational reason (an ETO) requiring a change in the workforce.
‘This ETO defence is narrow in scope and can be difficult to rely upon. Even if the employer can rely upon an ETO defence and the dismissal is not automatically unfair, it may still be unfair for other reasons (such as a failure to consult properly in a redundancy situation).’
And as this particular person points out – Addaction’s ‘… failure to consult is certainly demonstrable’.
The ADP’s indisputable culpability
This chaos will be a long time spinning out. Layer after layer of deceit and incompetence is being revealed and there is a lot more to come. It the direct responsibility of the ADP, in the manic speed of implementation it imposed upon this contract.
This could not be a sharper example of illiterate management accompanied by carelessness of the impact on the lives of those finding themselves the subject of a sustained attempt to scramble them out of a job.
The next article in this serial soap opera will be tomorrow and will return to the disquieting subject of whether the award of the contract to Addaction was a predetermined outcome of the tender process.
Note: Both local MSPs, Jackie Baillie and Michael Russell, are concerned about this matter and are working together to get the dysfunctionality of the ADP addressed and to resolve this current mess. Together they have asked Audit Scotland to review the case and have been in regular communication with Community Safety Minister Paul Wheelhouse.
