Caterer and Hotelkeeper – 31239

TUPE ruling ‘unfair' says Bromwich

A LANDMARK transfer of undertakings (TUPE) ruling earlier this month has handed an unfair advantage to the existing contractor in a tender situation, according to Bromwich Catering managing director William Webster.

A Southampton industrial tribunal ruled that Bromwich was wrong not to apply TUPE when it took over the catering operation for three IBM sites in Portsmouth and Basingstoke from Gardner Merchant (Caterer, 17 March).

"The idea behind competitive tendering is to increase the business efficiency of the commercial world by allowing companies that can run a contract without overmanning or inefficient procedures to gain further contracts," Mr Webster explained.

"The position now is that if a contractor tendering for business feels an operation can be run more efficiently, but that this entails making staff redundant or replacing employees with more qualified staff, all these employment expenses will fall on the incoming contractor.

"This gives the existing contractor an unfair advantage in the tendering process and defeats the whole object of competitive tendering."

Bromwich would now be obliged to have staff on different contracts of employment, with varying rates of pay and entitlements. "This is not only an inefficient business method but is also likely to create resentment among staff," said Mr Webster.

He pointed out that since last July industrial tribunals had failed to agree on the application of TUPE. "It is a matter of regret that the application of the law depends not on a clear statement of the law in regulations, but on the interpretation of the regulations by tribunals.

"Even now, another tribunal in a different case could come to a differentdecision."