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EMPLOYMENT SECRETARY HIT WITH 128 WRITS OVER DIRECTIVE

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Five public sector unions this week issued 128 writs against Employment Secretary David Hunt claiming damages for l...
Five public sector unions this week issued 128 writs against Employment Secretary David Hunt claiming damages for losses suffered because the UK government failed to implement a European Directive properly.

The three local government unions - Unison, the TGWU and the GMB - and two civil service unions - NUCPS and NIPSA - are acting on behalf of members who lost their jobs or suffered cuts in pay and conditions after compulsory competitive tendering or contracting out. The writs concern 128 public sector contracts including 18 involving Unison members.

Three of these relate to the takeover in 1987 of refuse collection operations in Westminster City Council by the management buy out company MRS Environmental Services, in Camden LBC by Onyx in 1991 and in Doncaster MBC by Sita in 1989. The unions claim the government failed to implement the Acquired Rights Directive 1977 properly in the Transfer of Undertakings (Protection of Employment) Regulations 1981. They will argue the regulations - which protect employee rights when organisations are taken over - included a clause which excluded the public sector from their purview.

The offending clause was removed earlier this year when the regulations were amended by the Trade Union Reform and Employment Rights Act 1993. The amendment came after the European Commission launched legal proceedings against the UK government for failing to implement the Directive properly.

If the unions are successful with these test cases the government could face a flood of further challenges and claims for damages from individuals affected before the law was changed in August 1993. Unison Assistant Secretary Roger Poole called on the government to accept that TUPE applies to CCT and to negotiate a compensation scheme for individuals affected in the past because the Directive was said not to apply.

'The last thing we want to do is spend the next three or four years fighting in the courts. 'Our position is clear: we want discussions with the government', he said. 'The writs have been issued but not served. We now have four months to serve them which should give the government some breathing space. 'Let's hope that wiser counsel will now prevail to bring about a situation where the unions can meet with the Department of Employment because if the government does not deal with the TUPE issue the unions will deal with it in the courts'.

The Department of Employment said this week: 'The government is confident about its position. 'Obviously details of the writs cannot be given as they are confidential'. The unions recently advertised in their journals to identify individuals who lost out because the TUPE regulations were not applied when public sector work was taken over by private companies. They were seeking suitable test cases for what have become known as Francovich challenges. An Italian judgment - Francovich v Republico di Italia - established the right of individuals to take action directly against the state for failing to comply with European law.

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