Saturday 11 June 2016

The Hidden Hand

Thanks go to the reader for sending in this interesting piece:- 

Kent Surrey and Sussex branch news. Don't let your CRC employer off the hook when they blame the owners!

Dear Members

There has been so much confusion around the staff transfer that has led to members not really understanding who their employer is and how it all works. I have therefore put together this briefing for our members in the hope it may clear the fog and help to understand who our employer is and how we got to be here.

The CRC is a limited company (companies Act) and their records can be obtained from the Companies House website, including details of the registered officers and executive Directors.

Company Law requires company directors to prepare reports, keep adequate accounts of transactions to disclose at any time the company and group financial position, in accordance with Companies Act 2006. Other duties to be exercised under the Act are to promote the success of the company, retain independent judgement, take reasonable care, skill and diligence, and avoid conflicts of interest. Safeguard the company and group assets, including taking reasonable steps to prevent and detect fraud and other irregularities.

Following creation of the CRC and staff split, 'a transfer of undertakings' resulted in the Trust staff and business functions being transferred to the CRC (TUPE regulations applied). The secretary of state determined that share sale, seven months later, did not constitute a secondary 'transfer of undertakings' to the parent company as share sale situations are not generally bound by the provisions of TUPE regulations.

Staff were therefore transferred under the government statement of practice (COSOP) but provided for 'no less favourable treatment' than TUPE although arguably through previous tests it is a less binding arrangement than an Act. Nonetheless, negotiations and agreements were made on specific time bound and permanent measures under the OM Act 2007 to protect terms and conditions of employment, including a binding agreement to retain the functions of the national negotiating body (NNC).

Interestingly, case law presents that a 'transfer of undertaking' has previously been determined by a tribunal court to have taken place in spite of the share sale scenario not generally covered by TUPE regs. Where a parent company mixes funds with the subsidiary, shares insurance contracts and employee benefit plans, markets both companies as a single entity, files consolidated income tax returns for example, it may be an indication of an inappropriate level of control exerted over the subsidiary by the parent company which significantly reduces its independence. Notably, there are publications that state the relationship between parent and subsidiary should not be a parent/child relationship or present as a single entity as this may arguably cause liability issues. Notwithstanding, it gives rise to potential claims for compensation on the grounds that the parent company is the employer but there was a failure to consult over the secondary transfer.

At any rate, KSS CRC remains a subsidiary of Seetec Group, the parent company, but the CRC untested remains the legal employer. The contract for the package area to deliver probation services is held between the CRC and the authority (SoS) and not with the parent company albeit they provide for certain warranties under the contract.

Whilst the employers identity may be confusing and relevance not immediately apparent, the union recognition agreement was transferred to the CRC in much the same way the employment contract was transferred. This means your local union reps, unlike Napo HQ, are ensuring we consult and negotiate with your employer to maintain employer relations. That is not to say we are not in discussions with Seetec but our employer must be accountable and ensure the parent company is not inadvertently or knowingly advancing their interests to the detriment of the CRC, its employees, our members.

Although the Secretary of State may indemnify the parent company against liabilities arising from CRC employee claims, in turn the CRC indemnifies the SoS against liabilities arising out of performance issues against contract obligations, including breaches of statutory duties. Liabilities here include any award, compensation, damages, loss, order, penalty or settlement payments, costs and expenses reasonably incurred in connection with a claim or investigation. The parent company underwrites these liabilities but this should not be an enabler for the parent company to stand between the employer and employee on negotiations neither an enabler for the CRC to delegate or deny responsibilities to their employees. In any event claims against an employer must be brought to their direct attention so it stands to reason we and our union leaders should be engaging with the CRC.


Yours,

26 comments:

  1. At last an intelligent post from a trade unionist !

    ReplyDelete
  2. "... our employer must be accountable and ensure the parent company is not inadvertently or knowingly advancing their interests to the detriment of the CRC, its employees..."

    Wonder if this principle was applied by Sodexo-owned CRCs when Sodexo pocketed government funds intended for CRC staff payouts, then got their CRCs to offer vastly reduced severance packages to unwanted staff...?

    ReplyDelete
    Replies
    1. I bet it was not but then if no one knew to hold them to account for the profiteering theft of staff redundancy money who can blame them they will take all they can.

      Delete
  3. Ah! So now I understand. Wtf!!!

    ReplyDelete
  4. What was the point of today. KSS is a leading CRC which has not made any redundancies. If napo members are unhappy in CPA 21 then their never be happy

    ReplyDelete
    Replies
    1. There will be don't be a fool and think there wont!

      Delete
  5. I think the time has come once more to reluctantly suspend the unmoderated comment facility - the standard has sadly deteriorated to the point of banality and maybe it's telling us all to just give up? Please send me your thoughts.

    ReplyDelete
    Replies
    1. Probation Officer12 June 2016 at 00:48

      No don't give up, this blog is the final trench defending against the enemy. There will always be peaks and troughs with blogging and comments. You never know what's again around the corner that will prove this blog to be vital.

      Delete
  6. Why aren't you talking about the NAPO elections Jim? The joint chairs are useless and silent yet they will get another term at this rate!

    ReplyDelete
  7. Jim, i believe that this is a sign of peoples increasing desperation and frustration. Those of us who remain, who have not already retired, taken redundancy, sacked or off sick with stress etc are facing really tough times at the moment. My crc face 40%cuts, people leaving every few weeks and 4 weeks notice to move from purpose built offices to a shabby not fit for purpose office. Staff with disabilities not being catered for etc. Perhaps those who have already left need to be reminded if this quite frankly intolerable situation. Our whole profession is going down the plug hole and no one is taking any redponsibility for that. Not only privatised but we are no hearing talk of further outsourcing of our work and also taking nps work for extra pay! Things just keep getting worse and it is frankly criminal.

    ReplyDelete
    Replies
    1. Things really bad in NPS. Increased bureaucracy as a result of chopping the service in two creating intolerable pressure. Quality has dived. People leaving. People on medication to cope with the bullying management style used by people who don't know what we do. And now the threat of E3. It's exhausting, and hurting lives. We don't deserve this. I think our justice system is teetering. Jim, don't give up.

      Delete
  8. well done thanks JB agree with you.

    ReplyDelete
  9. I wonder if someone could put in simple terms what the original post is saying. Don't know if it's because I am fatigued, but it had gone way over my head

    ReplyDelete
    Replies
    1. My simplistic understanding of it is that pre-share sale, i.e. when the Trusts were converted into CRCs, is the time when staff were TUPE'd over & terms + conditions were protected in law. When share sale happened no such transfer of responsibility took place, hence such arrangements as the time-limiited NNC agreement on EVR allowed the new owners to vary terms & conditions BUT... that legally speaking the CRC is your employer, that the owners of the various CRCs are not, and that the CRC as your employer has a duty of care, which includes protecting itself (including assets) & it's staff from exploitation by the new owners.

      With the shedding of staff, the failure to honour redundancy agreements, widespread relocation, etc, etc, it leaves a big question-mark as to whether asset stripping & abusive employment practice has been allowed by the CRCs; and if the CRC directors & responsible officers (CEOs, etc) are liable for a legal challenge for a failure of their duty of care. Notwithstanding that many, if not most, of the CRC directors are also profiting in their parallel roles as directors of the parent companies.

      A bit like MPs using public funds employing family members & regulating their own expenses & salaries, perhaps?

      Delete
    2. Thank you @06:05, that has helped me a lot. Will NAPO seek legal advice on this I wonder.x

      Delete
    3. To 10:27 - No. This was the view from a full-time union officer in 2015:

      "The point about the CRC's being the employer is a reasonable and interesting one but unfortunately one that we fear will mostly provide profit for lawyers as in reality if the shareholders are nearly all in one place and the golden share holder (ie the SoS) is playing the part of absentee landlord then it makes little practical difference on a day to day basis."

      In other words its complex and we can't afford to pay the lawyers. The employing CRCs are heavily populated with shareholders in key positions and the Sec of State, as holder of the golden share in each CRC, won't oppose the majority shareholder decisions i.e. he will absent himself from any challenge to CRC practices.

      Is there a brave, bored barrister out there with a taste for employment law looking for a pro bono project? Who knows, it could lead to prosecuting the SoS for malpractice and recovering the (alleged) £80M public funds handed over to the CRC owners which was intended for staff via the EVR scheme.

      Delete
    4. So the hidden hand "name of blog" does not allow us to hold CRC owners or SoS to account and all the claims NAPO made were a red heron just like the Judicial review.

      Delete
    5. The original post is saying that you need to hold your emplyer to account and don't allow them to blame the parent company or make claims they are not in control. If the parent company appears to have all the control then there is a sginifcant possibility of a claim against the parent company for transferring CRC employees to the parent company. NAPO recognition agreement is with the CRC employer not the parent company. If you engage with the parent company and not the CRC you are not maintaining that agreement and you hand the power to the parent company. By default your giving up your employment rights and agreeing to an unlawful transfer. Day to day it does make a difference because your terms and conditions will change to benefit the parent company and you will loose the ability to negotiate best outcomes. Notwithstanding the governance rules of companies act will be breached by your employer if they allow the parent company to rule.

      Delete
  10. This blog needs to continue its the only place I get to find out what's happening in other crc's and nps. It's interesting that new recruits into KSScrc were told by Nigel Bennett not to read this blog.

    ReplyDelete
    Replies
    1. Nigel Bennett
      Group Justice Director, Seetec

      Nigel has over 25 years experience of operating within the criminal justice system, and led KSS CRC for the first year as the CEO before handing over to Suki Binning; he now has a larger portfolio as Group Justice Director.

      He has front-line delivery experience as a qualified Probation Officer working his way through the ranks. He has the highest-level strategic experience having worked as a Senior Advisor in the Prime Minister’s Delivery Unit where he developed solution-focussed delivery in the Home and Foreign Affairs Team. In the Coalition Government he worked as part of the team advising the PM and Chancellor on budget deficit reduction. Nigel also has international experience from a secondment to the Ministry of Justice in Ankara, Turkey, where he worked with others to establish the nation’s probation service in preparation for entry into the EU. Before joining Seetec Nigel worked as Justice Director in a consultancy firm where he increased turnover from a zero base to £1.5m in just 12 months, helped win 7 CRC contracts and placed teams with three different companies in the TR competition, all of whom were successful.

      As the main architect of My Solution Rehabilitation Programme (MSRP), Nigel works with Seetec and KSS CRC to deliver results.

      Delete
    2. During which time Mrs Bennett was working for HM Government (noms) overseeing the CRC contracts.

      Delete
  11. Like a CEO would tell new recruits that. Come on get real. Even if he did, im sure it was to protect them as this blog IS NOT the reality of working in a CRC or NPS. AS for Jim, your constant threat to end the blog so people beg uo not too is merely designed to pump up your own ego. We have free speech so let people blog what they want and only delete if its criminal. You act like a dictator on here and if you cant see that then there is something wrong. You're a good blogger but less censorship please!

    ReplyDelete
    Replies
    1. I have heard senior managers in my own CRC (not KSS) refer to this blog in an exasperated way, so I can well believe what Anon 06:04 says - though if I were one of those new recruits, being told not to read something (especially by the CEO) would only make me want to read it all the more!

      On the point of censorship - people have every right to go and create their own blogs to put forward their point of view. I think Jim is well within his rights to delete some of the witless garbage that gets posted on here from time to time. There are plenty of dissenting voices - not least yours.

      If this blog isn't describing the reality of where you work, why not tell us about it? Or, to put it more pithily, "put up or shut up".

      Delete
    2. I work in KSS as a PSO. Im really happy i work and ive done this for 12 years

      Delete
    3. Well said 1117

      Delete
  12. I smell a rat! Aside from that i have also overheard a comment from a manager about avoiding 'the negativity of this blog' .talk about infantilising staff! I am quite capable of deciding what to read and what not to read! Unfortunately i cannot always choose what i have to overhear!

    ReplyDelete