Metronet ballot possible: one for the road?

Following some very unsavory legal advice it now appears that jobs will be under threat when Metronet staff return to London Underground on 8th December. It appears that although all the staff are being tranferred to LUL, the contracts will remain with Metronet. This makes it possible for example that Metronet withdraw the contract from LUL and give it, let's say, to Balfour Beatty leaving the current Metronet employees jobless. The advice is provided in full underneath.

----Original Message-----

Dear Bob,

I am asked to advise as to whether the transfer of staff from Metronet to LUL is a TUPE transfer, and, if it is, whether staff would be protected in the event of subsequent transfers of Metronet work. Gerry Duffy's letter of 18 November says that this amounts to a service provision change for the purpose of TUPE.

TUPE 2006 introduced the concept of a service provision change. This means that there are now two types of transfers: transfers of undertakings and service provision changes.

Three conditions have to be satisfied for there to be a service provision change:

1. "Activities" must cease to be carried out by the first employer (the "client") and are carried out by someone else;

2. immediately before the transfer, there is an organised grouping of employees which has as its principal purpose the carrying out of those activities; and

3. the client intends that, following the service provision change, the activities will be carried out other than in connection with a single specific event or task of short-term duration.

I think that Gerry Duffy is probably right when he implies that the transfer of staff to LUL satisfies these criteria. The "activities" which are ceasing to be carried out by Metronet is, in effect the day to day running of the business. Those activities are to be carried out by LUL

But I think that it is much more difficult to confirm comprehensively that staff would subsequently automatically transfer to another contractor in the event that part of Metronet's business was sold or outsourced.

First, if there was a transfer of a part of Metronet's business, that would be likely to be a transfer of an undertaking, but the staff would not be assigned to the undertaking (because they would not be employed by the person transferring the business). They would therefore only transfer if that transfer of an undertaking by Metronet also amounted to a service provision change on the part of LUL (satisfying the above three criteria).

Whilst, in most circumstances, I would anticipate that those criteria probably would be met, I could not guarantee that that will necessarily always be the case. Suppose, for example, that Metronet transferred a part of its business to a contractor and the staff employed by LUL who worked in that part of the Metronet business did so only as part of their other duties, and did not constitute an organised grouping of employees which had as its principal purpose the carrying out of those particular duties. In that situation, there would have been a TUPE transfer from Mertronet, but the staff employed by LUL would not transfer.

I may well be splitting hairs, and I can not come up with a concrete example which illustrates my concerns. But I don't think that Gerry Duffy's answer to this point in his letter of 18 November gives the union the confirmation it seeks or addresses the concern I have. I think that he evades the point. The position is not clarified in the subsequent written statement because that suggests that Metronet has a discretion to insist on the transfer of staff, and that would not be the case if TUPE applied.

I am very conscious that I am not providing a solution here, which I regret. However, on the issue of future transfers, whilst staff should usually transfer as well, I can not guarantee that that will always be the case.

I hope that this is helpful.

Best wishes Richard Arthur

This is obviously an unacceptable situation for the staff involved and both engineering branches are asking the union to ballot unless the issues raised are resolved.We cannot allow the victories that we have achieved over the privateers to become phyric victories.We thought that the days of balloting against metronet were over but it looks like one for the road may be necessary after all.