Editorial: TUPE needs court cases to clear up any confusion

It will be scant consolation to the McCann Erickson staff facing employment limbo that the so-called TUPE laws are among the most inflexible and poorly conceived pieces of legislation to reach the statute books in recent years.

Far from protecting their jobs in the wake of the agency's Boots Healthcare International account switching to Euro RSCG, TUPE may force them into prolonged uncertainty while the agencies dispute who is responsible for them.

The problem is that the new rules are so full of anomalies and confusion that it may be that they can only be refined b y Britain's judges on a case-by-case basis. But at least, a high-profile court case involving two top agencies might succeed in bringing home to agencies and clients how serious the implications are. At present, there is incredulity in adland. The finance director of an agency recently asked the IPA to put something in writing for him about TUPE's impact as his agency's board simply did not believe his warnings, he said.

How did it come to this? How is it possible that a law intended to safeguard the jobs of public sector workers should be creating such unnecessary disruption elsewhere? Only because the legislation failed to include an exemption for professional services such as advertising, despite extensive lobbying for one. Whether this was because of stubbornness or stupidity is not clear.

What is clear is that only a large body of case law can iron out TUPE's inconsistencies. A lot of expensive litigation may be the price agencies must pay for the rules to be refined. In the meantime, there is a real danger that loopholes will be exploited with agencies using TUPE as an excuse for avoiding big redundancy payments to high-salaried board account directors. Even more serious is the threat of disputes that become so protracted that affected staff are left in an impossible situation with neither of the combatant agencies willing to employ them. Moreover, prospective employees may think twice about joining an agency knowing they may be forced to move if their account does.

By being forced upon a business where it has no place, TUPE has the potential to cause much misery and financial pain. Only the lawyers will be laughing.