Meeting Date 22 July 2013 Subject Report of Summary General Functions Committee Insource May Gurney Recycling TUPE Transfer StreetScene Director This report relates to the transfer into Barnet of current May Gurney Recycling employees. Staff will be transferred in accordance with the Transfer of Undertakings (Protection of Employment) Regulations 2006 ( TUPE ). Regulations and the Council s TUPE Transfer Commitments. Officer Contributors Status (public or exempt) Wards Affected Key Decision Reason for urgency / exemption from call-in Function of Enclosures Contact for Further Information: Lynn Bishop StreetScene Director Chas Dowden Head of HR Business Partners and Reward Public Not Applicable Not Applicable Not Applicable Council Appendix A Employee Equality Impact Assessment Lynn Bishop StreetScene Director
1. RECOMMENDATIONS 1.1 To note that Cabinet resolved on 4 April 2012 to the insource of recycling operations and the Household Waste Recycling Centre from May Gurney PLC. 1.2 To note the consequential and automatic TUPE transfer of the staff in May Gurney PLC to the Council with effect from 6 October 2013. 1.3 To note the consequential and automatic TUPE transfer of the staff in May Gurney PLC Household Waste Recycling Centre HWRC at Summers Lane to the Council with effect from 9 October 2013. 1.4 To note that, following transfer, the relevant posts will be created in the Council s staffing establishment. 2. RELEVANT PREVIOUS DECISIONS 2.1 Cabinet, 4 April 2012, Decision Item 11, approved Waste Collection Options for the Future 2.2 Cabinet Resources Committee, 7 November 2012, Decision Item 5, approved the Outline Business Case and Options Appraisal for Waste and Street Scene Services 2.3 Cabinet Resources Committee, 18 April 2013, Decision Item 13, approved Waste Collections for the Future 3. CORPORATE PRIORITIES AND POLICY CONSIDERATIONS 3.1 This decision supports the following priorities in the Corporate Plan 2013-2016: To maintain a well-designed, attractive and accessible place, with sustainable infrastructure across the borough. Barnet s waste and recycling service is highly regarded, with 82 per cent of residents satisfied with the service. We have committed to providing a weekly bin collection. By adding weekly food waste collection and a mixed recycling collection this October, we aim to make it easier for residents to recycle, reducing the amount of waste sent to landfill and cutting costs. 3.2 Under the strand Better Services, Less Money there are the strategic objectives to manage resources and assets effectively and sustainably across the public sector in Barnet. The options proposed for future waste collections are designed to deliver better services and cost savings when compared with a do nothing scenario. 3.3 Under the strand Sharing Opportunities, Sharing Responsibilities there is a strategic objective to decrease overall levels of household waste whilst increasing the proportion of waste being recycled. The options proposed for future waste collections are designed to decrease overall levels of household waste and increase the proportion of waste being recycled.
4. RISK MANAGEMENT ISSUES 4.1 The most significant risks specifically in respect of the transfer of May Gurney staff (i.e. excluding any business and project risks detailed elsewhere) are as follows: ID Risk Description 1 A reduction in staff morale and/or productivity leading to increased staff turnover, sickness levels and/or disruption to service delivery in the lead up to the transfer. Difficult relationships between existing LBBarnet staff and May Gurney staff who have transferred. 2 The council could be challenged over its handling of the TUPE process 3 LBBarnet acquires workforce liabilities as a result of the transfer including, for example, litigation, pensions, employee data etc. Planned Mitigation Maximise staff engagement and communication through a robust mobilisation plan. This will include: frequent service team meetings, joint staff briefings and one-to-one meetings with transferring staff and existing LBB staff where appropriate, Ensure that any issues or questions that arise are dealt with in a timely manner. Monitor key HR performance indicators and listen to all staff concerns so that any issues arising can be addressed at the earliest opportunity. Between the staff briefings prior to and post transfer a raft of support mechanisms will be implemented including one-to-one information exchange and welfare meetings, meetings with May Gurney and LBBarnet Trade Union representatives and May Gurney employee representatives. Ensure that the statutory TUPE information and consultation process and the employee liability information data transfer comply with the TUPE Regulations and best practice. Employee liability information has been verified for accuracy by way of a data cleanse letter to each employee prior to the information being transferred. The data will be transferred to LBBarnet in a secure manner and will be managed in accordance with the Data Protection Act and ICO Guidelines. An employee Equalities Impact Assessment will also been carried out at key milestones and, as it is a dynamic document, it is updated regularly to reflect how the council is addressing key issues. LBBarnet will carry out extensive workforce related due diligence to establish any related liabilities and will seek appropriate indemnities and/or insurances or will escalate consequent risks as appropriate. These risks will continue to be assessed and managed in accordance with the Council s project and risk management methodologies.
5. EQUALITIES AND DIVERSITY ISSUES 5.1 Equality and diversity issues are a mandatory consideration in decision making by the council pursuant to the Equality Act 2010. This means the Council and all other organisations acting on its behalf must have due regard to the equality duties when exercising a public function. 5.2 The three limbs of the public sector equality duty involve the need: To eliminate discrimination; To advance equality of opportunity by removing disadvantages from particular groups, meeting the needs of particular groups and encouraging under-represented groups to participate in public life; and To foster good relations between those sharing and those not sharing protected characteristics by tackling prejudice and promoting understanding. 5.3 The duty should be applied before a decision is made and be part of the decisionmaking process. 5.4 The protected characteristics under Equalities legislation are: Age, Disability, Gender, Gender Reassignment, Marital status, Pregnancy and maternity (including teenage parents), Race, Religion or belief, Sexual Orientation. 5.5 An outline employee equalities impact assessment has been completed by the Council and is in Appendix A. 5.6 Having considered these issues in detail, it is the Council s view that the overall impact on staff with protected characteristics, in terms of the Council s ability to tackle discrimination and advance equality of opportunity, is likely to be positive. Where there are potentially negative impacts, there are mitigations proposed by the Council. There is likely to be a neutral impact on good relations between those sharing and those not sharing protected characteristics. 6. USE OF RESOURCES IMPLICATIONS (Finance, Procurement, Performance & Value for Money, Staffing, IT, Property, Sustainability) 6.1 Staffing Implications 6.1.1 All in-scope employees working for May Gurney PLC at the time of transfer will automatically become employees of the Council under the TUPE Regulations when their work transfers on either 6 October 2013 or 9 October 2013 as appropriate. 6.1.2 The Council will meet all of its statutory obligations as required by TUPE Regulations such that the pre-existing contractual terms and conditions of transferring May Gurney staff will be protected on transfer. The full cost of transferring staff on pre-existing terms and conditions has been included in the business case and financial implications as set out below. 6.1.3 TUPE will operate to transfer to the Council all of May Gurney s rights, powers, duties and liabilities under or in connection with the contracts of employment of the relevant staff. This means that all in-scope employees working within May
Gurney PLC at the time of the transfer will become employees of the Council under the TUPE Regulations. 6.2 Information and Consultation 6.2.1 Staff and Trade Unions have been informed and engaged from the start of the project and this will continue up to and beyond the point of transfer. There have been, and will continue to be, monthly TUPE briefings for staff and Trade Unions. In addition, there will be the opportunity for May Gurney staff to meet LBBarnet managers and HR support in employee surgeries to discuss the implications of the changes to them personally. This activity will continue throughout the mobilisation period to ensure the best possible foundations to enable success. 6.2.2 The Council will fulfil its TUPE duties to inform and consult staff through tripartite meetings between the Council, May Gurney PLC and the Trade Unions, which will begin in August 2013. At these meetings the Council will propose any measures to be implemented on transfer and the Council will consult with Trade Unions specifically over such measures. 6.3 Support for Staff and Managers 6.3.1 The Council has a full staff mobilisation plan to ensure that all of the TUPE obligations with regard to informing and consulting are properly discharged. 6.3.2 An important part of mobilisation is the release of staff from their duties in week commencing 6 th October 2013 to attend informative briefings, induction, one-toone meetings and training on new systems, vehicles and processes, so that they can start to understand the culture and working processes of their new employer. The Council recognises that release at the early stages of mobilisation will contribute to a smooth transfer of staff and the process will be managed to ensure minimum disruption to the services and the residents of Barnet. 6.4 Employee Liability Information 6.4.1 In the lead up to the transfer, in addition to meeting the TUPE information and consultation requirements, May Gurney PLC must provide the Council with the relevant employee liability information. This information must be given at least fourteen days before the transfer or, if special circumstances make this not reasonably practicable, as soon as is reasonably practicable after the transfer. It is proposed that there will be full transfer of relevant data at the point of transfer to ensure that there is a seamless transition with minimal disruption to staff and service delivery. 6.4.2 The employee liability information will be reviewed during the mobilisation period and it will be changed as staff join or leave May Gurney PLC or change job. 6.5 Pensions 6.5.1 Transferring staff, if eligible under the Local Government Pension Scheme (LGPS) Regulations, will be enrolled into the Barnet LGPS scheme on transfer. Employees will have the option to opt out of the scheme.
6.6 Financial Implications 6.6.1 The cost of the TUPE staff in the in-sourced recycling operation will be 1.3m and will be covered by existing budgets in StreetScene Delivery Unit. 6.6.2 The in-sourcing of May Gurney PLC is a key component in enabling the StreetScene Delivery Unit to meet its MTFS savings targets from 2013/14 to 2015/16. 6.7 IS, Property, Procurement, Performance, Value for Money Implications 6.7.1 There are no IS, Property, Procurement, Performance or Value for Money Implications to report. 7. LEGAL ISSUES Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) 7.1 The TUPE Regulations meet the obligations of the UK to ensure the protection of employee rights when there is transfer of an undertaking in accordance with a European directive (the Acquired Rights Directive). A relevant transfer can be either a transfer of an undertaking, business or part of an undertaking or a service provision change (an additional provision not required by the Directive) identity involving the outsourcing, retender or insourcing of a service. 7.2 In circumstances where TUPE applies, the employees transferred will become employees of the transferee (the Council in this case) by virtue of the statutory novation of their employment contracts under TUPE. The Duty to Inform and Consult 7.3 Where employees are transferred from one employer to another under TUPE, both the current and the new employer have duties to inform and potentially consult with appropriate representatives in relation to any of their employees, who may be affected by the transfer or by measures taken in relation to it. If the employer recognises a trade union, they must consult with that union; if not, employee representatives must be elected if they do not already exist. Duty to Inform 7.5 Employees who might be affected by the transfer may include: Individuals transferred from the transferor (May Gurney PLC in this case) to the transferee (the Council in this case) The transferor s employees who do not transfer but whose jobs might be affected by the transfer The transferee s employees whose jobs might be affected by the transfer. 7.6 The new and current employers are obliged to inform the representatives of their respective affected employees in writing of: The fact of the transfer, the date, and the reasons for it; The legal, economic and social implications of the transfer for the affected employees;
Whether the employer envisages taking any action (e.g. reorganisation) which will affect the employees and, if so, what action is envisaged; The number of agency workers working temporarily for and under the supervision and direction of the employer; This matter is addressed on a monthly basis by the Council and May Gurney have been requested to do the same. The parts of the employer s undertaking in which those agency workers are working; and The type of work those agency workers are carrying out. 7.7 Where the current employer is required to give the information, they must disclose whether the prospective new employer envisages carrying out any measures which will affect the employees and, if so, what. The new employer must give the current employer the necessary information so that the current employer is able to meet this requirement. 7.8 Measures means, for example, changes to terms and conditions, grading or other structures or the declaration of redundancies. It will include any action, step or arrangement in connection with the transfer. Duty to consult 7.9 Unlike the obligation to inform, the mandatory obligation to consult will not arise on every relevant transfer. The current employer and the new employer will only have a mandatory duty to consult the representatives if either anticipates that it will take measures in relation to any of its own affected employees which are connected with the transfer. 7.10 However, there is no obligation on the new employer, prior to the transfer, to consult representatives of the transferring employees about measures which it envisages taking in relation to them. Nor is there any obligation on the transferor to consult them about such measures, as the obligation only arises in relation to measures which an employer envisages taking itself. This is an unsatisfactory position and often, in practice, either the current or new employer will consult the transferring workforce on such measures in the interests of good employee relations. 7.11 The consultation must be with a view to seeking the agreement of the employee representatives to the measures to be taken. There is no requirement actually to reach an agreement. At the least, the employer must give the representatives the opportunity to make representations about the measures being taken; consider and respond to any representations made and, if any, of these are rejected state the reasons for this. 8. CONSTITUTIONAL POWERS (Relevant section from the Constitution, Key/Non-Key Decision) 8.1 The Council s Constitution Responsibility for Council Functions General Functions Committee discharges the Council s functions not reserved to the Council including staff matters. Restructures which have major implications including changes to contracts of employment and proposals involving major changes in working practices and location of employees must be submitted to General Functions Committee for approval.
9. BACKGROUND INFORMATION 9.1 In approving Waste Collections for the Future in April 2012 Cabinet agreed to the following model for household waste collection in Barnet: Residual waste collection to remain as weekly collections Dry recycling to move to co-mingled and to be collected weekly Kitchen waste to be collected in an external caddy on a weekly basis (this is currently collected as organic waste in with Garden Waste) Garden waste to be collected fortnightly (currently this is collected weekly) 9.2 The One Barnet Wave 2 Waste and Street Scene project, the Outline Business Case for which was approved in November 2012, approved that Street Scene services should be retained and developed in-house and that in doing this the baseline cost of services would be reduced by 2.48million. 10. LIST OF BACKGROUND PAPERS None Cleared by Finance (Officer s initials) Cleared by Legal (Officer s initials) AD CE (HB Public Law)
Appendix A Employee Equality Impact Assessment 1. Introduction 1.1 Purpose As part of the public sector Equality Duty, section 149 of the Equality Act 2010, the Authority is required to give due regard to the need to eliminate discrimination, advance equality of opportunity, and foster good relations between different people when carrying out activities. 1.2 Description of the critical milestones Employees will be transferred to the Council on:- - 6 October 2013-9 October 2013-14 October the revised Recycling service commences 1.3 Key Stakeholders. In scope staff currently May Gurney employees Council customers represented by the members of the advisory group, these are the service areas that use the services in scope Politicians decisions regarding the progress of the project will be taken by Cabinet Resources Committee and Cabinet Senior Council officers the project is sponsored by the Deputy Chief Executive 1 and the board comprises of senior Council officers Trade Unions represented by trade union staff who attend monthly meetings with the project manager, HR and project sponsor 2. Any Anticipated Equalities Issues at each milestone and identified mitigation 2.1 Staff Transfer The Equalities Data for those May Gurney employees who transfer, will not be available from May Gurney as this is personal data and will be requested after transfer to the Council. 2.2 Transfer date The EIA will be reviewed following the transfer in order to determine the actual impact on staff in scope.
3. Potential Impacts and transferring from May Gurney Listed below is a summary of the key benefits to staff Proposed Activities 1 Transition and Communicatio n Potential Impact Impact Type Protected Groups Affected Staff concern about Negative All protection of their terms & conditions and fair treatment at the point of transfer The Council has stated that all transferring staff will have their continuous service preserved under TUPE and that all their contracts of employment transfer, with staff retaining their key contractual transferring terms and conditions such as annual leave, grade and pay entitlements. The Council will provide resource to induct/coach/mentor transferring staff. The Council is well versed in engaging and effectively communicating with transferring staff to keep them well informed, in managing the consultation process and putting in place relevant support mechanisms. Full communication and engagement plan to integrate former May Gurney staff into the Council quickly and effectively including: Inform and consult with TUs and staff A carefully designed induction programme Working collaboratively with TUs to ensure consistency of message Staff briefings considering various groups of staff including varying work patterns and locations.
2 Consultation on Proposed Measures (known changes) Staff concern about protection of terms & conditions Negative All Provide terms and conditions matrix. The Terms and Conditions Matrix will detail all existing policies, procedures, benefits, pensions and pay arrangements. This matrix will then form the basis for TUPE consultation. An initial review has been completed through discussions with May Gurney and as a result the Council will have a good basis for populating the Matrix in advance. Individual staff verification statements will be completed by May Gurney to confirm transferring terms and conditions and these will be reviewed following transfer. Honour any May Gurney pay award implemented prior to transfer. 3 Training and Development Development in role and career progression Positive All Provide continuous professional development and skills enhancement. Provide staff with the right tools so they can excel in their roles. Succession planning and talent management. Career development. Skills mapping to identify training needs. Full roll out of performance appraisal process and setting of clear objectives clearly linked to KPIs. Focus on professional accreditation and support existing professional development plans. 4 Restructure Possible loss of employment or detriment suffered from changes Negative All Possible assimilation if appropriate. Offer of opportunities to work on innovative and new projects if appropriate. Provide continuous professional development and skills enhancement. Provide staff with the right tools so they can excel in their roles. Succession planning and talent management. Career progression. Skills mapping to identify training needs.
5 Redundancy Perceived loss of employment due to redundancy of posts Negative All Minimise the impact of redundancy through redeployment, managing vacancies and temporary staff and natural shrinkage. Full consultation, communication and engagement. Full consultation period honoured and one-to-one sessions available. 6 Working practices Staff concern regarding flexible working formal and informal Negative Enable staff to have flexibility in their working practices where practicable. Support through capacity planning and management. LBB s values All