The magic TUPE roundabout: Council, Wipro, Northgate all deny employing Unix admins in outsourcing muddle
(2021/09/10)
- Reference: 1631281507
- News link: https://www.theregister.co.uk/2021/09/10/employment_tribunal_wipro_northgate_highland_council/
- Source link:
A pair of Unix sysadmins have claimed a botched TUPE job transfer left them stuck between three organisations which all denied responsibility for employing them.
The two, named by the [1]Scottish Employment Tribunal as Messrs K Fulke and K Reid, were employed by Wipro in 2011 on a contract the Indian firm had with the Highland Council.
Yet Employment Judge Nick Hosie threw out their claims against both the council and Wipro, leaving them to pursue only NEC-owned Northgate Public Services.
[2]
Northgate's solicitor tried and failed to successfully argue that TUPE, the Transfer of Undertakings (Protection of Employment) Regulations 2006, shouldn't be applied to an outsourcing contract where IT services went from being hosted on-premises into the cloud. He urged the judge to accept that for employment law purposes, moving from on-premises to cloud resulted in work being done in a "fundamentally different way" – meaning TUPE protections wouldn't apply.
[3]
[4]
TUPE is the law that stops you from being automatically sacked if your company transfers you to another firm after losing a contract. There are ways around it, as there always are with the law, but here Northgate didn't manage to make a clean getaway as some might say Wipro and the council did.
Both claimants were working on the Highland Council's CareFirst system and had been since the early 2010s. In 2019 the council decided to strip Wipro of its Unix contract and split it between other outsourcers, including Northgate. The Unix-based systems the council owned covered three areas: social services, housing, and revenue and benefits.
[5]Company selling you out? You've been TUPE-ed
[6]Check the TUPE: Facebook's hire of Bloomsbury AI founders wasn't 'traditional' acquisition – so sacked bod can't claim law was broken
[7]Brit retailer John Lewis to catapult 111 tech bods over to Capgemini weeks after dumping 244 on Wipro
[8]Never knowingly under-digitally transformed: Retailer John Lewis outsources tech function to Wipro
When the contract was transferred from Wipro, the company "took the position that the Claimants' employment would transfer" to Northgate under TUPE. The Highland Council agreed. Northgate, however, had other ideas, "maintaining that the services they were providing had moved from a dedicated server environment to a shared server Cloud based environment," as the judgment said.
This, the company claimed, meant TUPE shouldn't apply and therefore Fulke and Reid's sysadmin jobs would be someone else's responsibility. Unfortunately for the two sysadmins, this would have meant they were jobless, stranded between three organisations that all said they weren't responsible for employing the duo.
[9]
Wipro successfully argued that as it had lost the Highland Council contract, its staff's contracts must have TUPE'd over to someone else. The council suggested that as Northgate was running its own data centres to service the contract, this meant the ex-Wipro sysadmins were doing work "which directly relates" to their old jobs – meaning they must have been TUPE'd to Northgate.
The judge dismissed Fulke and Reid's claims against the council and Wipro at a hearing in August. Their case against Northgate will be heard in due course. ®
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[1] https://www.gov.uk/employment-tribunal-decisions/mr-k-fulke-and-mr-k-reid-v-wipro-ltd-and-others-4104119-slash-2020-and-4104158-slash-2020
[2] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_onprem/front&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=2&c=2YTuBOrNnyHImyTgv2HN8twAAAIE&t=ct%3Dns%26unitnum%3D2%26raptor%3Dcondor%26pos%3Dtop%26test%3D0
[3] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_onprem/front&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44YTuBOrNnyHImyTgv2HN8twAAAIE&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
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[5] https://www.theregister.com/2013/11/19/tupe_what_to_expect_if_you_are_exiting/
[6] https://www.theregister.com/2021/06/01/facebook_bloomsbury_ai_unfair_dismissal_tribunal/
[7] https://www.theregister.com/2020/07/15/john_lewis_capgemini/
[8] https://www.theregister.com/2020/07/01/the_john_lewis_partnership_wields/
[9] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_onprem/front&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44YTuBOrNnyHImyTgv2HN8twAAAIE&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[10] https://whitepapers.theregister.com/
The two, named by the [1]Scottish Employment Tribunal as Messrs K Fulke and K Reid, were employed by Wipro in 2011 on a contract the Indian firm had with the Highland Council.
Yet Employment Judge Nick Hosie threw out their claims against both the council and Wipro, leaving them to pursue only NEC-owned Northgate Public Services.
[2]
Northgate's solicitor tried and failed to successfully argue that TUPE, the Transfer of Undertakings (Protection of Employment) Regulations 2006, shouldn't be applied to an outsourcing contract where IT services went from being hosted on-premises into the cloud. He urged the judge to accept that for employment law purposes, moving from on-premises to cloud resulted in work being done in a "fundamentally different way" – meaning TUPE protections wouldn't apply.
[3]
[4]
TUPE is the law that stops you from being automatically sacked if your company transfers you to another firm after losing a contract. There are ways around it, as there always are with the law, but here Northgate didn't manage to make a clean getaway as some might say Wipro and the council did.
Both claimants were working on the Highland Council's CareFirst system and had been since the early 2010s. In 2019 the council decided to strip Wipro of its Unix contract and split it between other outsourcers, including Northgate. The Unix-based systems the council owned covered three areas: social services, housing, and revenue and benefits.
[5]Company selling you out? You've been TUPE-ed
[6]Check the TUPE: Facebook's hire of Bloomsbury AI founders wasn't 'traditional' acquisition – so sacked bod can't claim law was broken
[7]Brit retailer John Lewis to catapult 111 tech bods over to Capgemini weeks after dumping 244 on Wipro
[8]Never knowingly under-digitally transformed: Retailer John Lewis outsources tech function to Wipro
When the contract was transferred from Wipro, the company "took the position that the Claimants' employment would transfer" to Northgate under TUPE. The Highland Council agreed. Northgate, however, had other ideas, "maintaining that the services they were providing had moved from a dedicated server environment to a shared server Cloud based environment," as the judgment said.
This, the company claimed, meant TUPE shouldn't apply and therefore Fulke and Reid's sysadmin jobs would be someone else's responsibility. Unfortunately for the two sysadmins, this would have meant they were jobless, stranded between three organisations that all said they weren't responsible for employing the duo.
[9]
Wipro successfully argued that as it had lost the Highland Council contract, its staff's contracts must have TUPE'd over to someone else. The council suggested that as Northgate was running its own data centres to service the contract, this meant the ex-Wipro sysadmins were doing work "which directly relates" to their old jobs – meaning they must have been TUPE'd to Northgate.
The judge dismissed Fulke and Reid's claims against the council and Wipro at a hearing in August. Their case against Northgate will be heard in due course. ®
Get our [10]Tech Resources
[1] https://www.gov.uk/employment-tribunal-decisions/mr-k-fulke-and-mr-k-reid-v-wipro-ltd-and-others-4104119-slash-2020-and-4104158-slash-2020
[2] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_onprem/front&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=2&c=2YTuBOrNnyHImyTgv2HN8twAAAIE&t=ct%3Dns%26unitnum%3D2%26raptor%3Dcondor%26pos%3Dtop%26test%3D0
[3] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_onprem/front&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44YTuBOrNnyHImyTgv2HN8twAAAIE&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[4] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_onprem/front&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33YTuBOrNnyHImyTgv2HN8twAAAIE&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[5] https://www.theregister.com/2013/11/19/tupe_what_to_expect_if_you_are_exiting/
[6] https://www.theregister.com/2021/06/01/facebook_bloomsbury_ai_unfair_dismissal_tribunal/
[7] https://www.theregister.com/2020/07/15/john_lewis_capgemini/
[8] https://www.theregister.com/2020/07/01/the_john_lewis_partnership_wields/
[9] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_onprem/front&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44YTuBOrNnyHImyTgv2HN8twAAAIE&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[10] https://whitepapers.theregister.com/
"Assuming they and only they have the relevant root passwords"
Mike 137
Knowing council IT departments, that would be a pretty unsafe assumption.
Anonymous South African Coward
Must be a nightmare.... hope it all get sorted out to the two Unix admins' best interests.
Are they being paid?
tip pc
Who is paying for them?
Re: Are they being paid?
katrinab
I'm guessing no, and that's why they are going to the tribunal.
katrinab
If they weren't TUPEd, then someone should have gone through the redundancy process in respect to them, surely?
John Riddoch
Yup, that's the point - Wipro assume they've been TUPE'd and therefore not their problem. Northgate assume they haven't been TUPE'd and are Wipro's problem. Either Wipro or Northgate should have continued their employment or given them redundancy terms/notice. Looking at the tribunal decision, they've decided that they were TUPE'd and therefore Northgate's responsibility to employ or offer redundancy terms to.
Quiet victory I hope/
DaemonProcess
I hope the companies don't eventually win because because they will use high court judgements to put groups of more expensive employees outside of regulatory protection. I would suggest they get their MP to ask a question in Parliament but that wouldn't change a thing with the current mob who really want to remove employment protections. Ultimately TV and other mass media may be the employees best bet. I also suggest intensive cloud training like the rest of us.
Assuming they and only they have the relevant root passwords I don't see the problem lasting longer than it takes for any work to need to be done. Then the council and Northgate can squabble between themselves as to who contracts the work out to their company.