TUPE - Is Green Correct?

[mitre_mouldmaster 21,509]

Hi All,

(Those bored easily may want to stop reading now!)

Thought you might be interested in seeing some actual factual information about TUPE and why Green thinks he is correct, and why the SFA and unions believe they are correct.

I used to work in HR and have been involved both in setting up (mainly just the admin side, not really the legal side) and being TUPE'd myself.

Greens main point is that the players contracts have already transfered, its too late. Where does he get this idea?

Here are some sources :

http://www.xperthr.co.uk/faqs/topics/4,47/transfer-of-undertakings.aspx?articleid=57199

If an employee in a TUPE situation refuses to transfer, to which employer should his or her resignation be submitted?

Logically, because the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE Regulations) have the effect that an employee's employment transfers to the new employer, an employee who refuses to transfer will not ever become an employee of the new employer. It follows that any resignation before or at the time of the transfer is best submitted to the original employer. However, regulation 4(7) states that, where an employee informs either the original employer or the new employer that he or she objects to becoming employed by the new employer, this will have the effect of preventing the employee's employment from transferring. This would appear to indicate that the resignation could in effect be submitted to either the original employer or the new employer. This will be the case provided that the resignation is submitted before or at the time of the transfer. If, on the other hand, the transfer has already taken place when the employee resigns, the resignation will have to be notified to the new employer, as the individual's employment will in fact have transferred before the resignation is submitted.

Here is an example of case law :-

http://www.addleshawgoddard.com/view.asp?content_id=3681&parent_id=3664

"On appeal, the EAT said that whether an employee has actually objected is a question of fact to be decided objectively in all the circumstances. A valid objection will prevent a transfer occurring and will end the employee's contract of employment on the date of the transfer. "

http://www.kennedys-law.com/es/article/resignation/

"The Court of Appeal has recently confirmed that, where an employee fails to object to a TUPE transfer, his employment will transfer to the purchasing company, even in a situation where he has given his notice of resignation prior to the transfer but where such notice expires post transfer." - This one isnt really valid, just thought it was interesting! Shows how its not cut and dry.

Now onto the view of the SFA and the players. They believe that a TUPE rejection can happen after the fact and this is what they are intending to do.

The case that they will use to try and prove this is the following :-

http://www.casecheck.co.uk/Default.aspx?tabid=1184&EntryID=14264

"Objecting to Transfer: In NEW ISG Ltd v Vernon, the High Court (Chancery Division) held a valid objection to a transfer by an employee can take place after the date of transfer in circumstances where the employee does not initially know the identity of the transferee and objects promptly as soon as he / she finds out. Such an objection shall have retrospective effect and prevents the operation of TUPE."

TUPE is regarded as a blackhole of law, and this case could go either way. I do however believe that case law examples put Green in the stronger position.

The only example of an after the fact TUPE rejection that has made it through the courts successfuly is one where the employe did not know the identity of the new employer before the transfer. Given the public nature of the Rangers story, and the fact they did hold a meeting prior to the TUPE, then I think this nullifies the case.

Who knows how it will go, but it will be interesting.

This will not stop the players leaving and getting new clubs, but they may very well find themself or their new employer getting hit with a large bill.

[carrickblue 322]

Hi All,

(Those bored easily may want to stop reading now!)

Thought you might be interested in seeing some actual factual information about TUPE and why Green thinks he is correct, and why the SFA and unions believe they are correct.

I used to work in HR and have been involved both in setting up (mainly just the admin side, not really the legal side) and being TUPE'd myself.

Greens main point is that the players contracts have already transfered, its too late. Where does he get this idea?

Here are some sources :

http://www.xperthr.co.uk/faqs/topics/4,47/transfer-of-undertakings.aspx?articleid=57199

If an employee in a TUPE situation refuses to transfer, to which employer should his or her resignation be submitted?

Logically, because the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE Regulations) have the effect that an employee's employment transfers to the new employer, an employee who refuses to transfer will not ever become an employee of the new employer. It follows that any resignation before or at the time of the transfer is best submitted to the original employer. However, regulation 4(7) states that, where an employee informs either the original employer or the new employer that he or she objects to becoming employed by the new employer, this will have the effect of preventing the employee's employment from transferring. This would appear to indicate that the resignation could in effect be submitted to either the original employer or the new employer. This will be the case provided that the resignation is submitted before or at the time of the transfer. If, on the other hand, the transfer has already taken place when the employee resigns, the resignation will have to be notified to the new employer, as the individual's employment will in fact have transferred before the resignation is submitted.

Here is an example of case law :-

http://www.addleshawgoddard.com/view.asp?content_id=3681&parent_id=3664

"On appeal, the EAT said that whether an employee has actually objected is a question of fact to be decided objectively in all the circumstances. A valid objection will prevent a transfer occurring and will end the employee's contract of employment on the date of the transfer. "

http://www.kennedys-law.com/es/article/resignation/

"The Court of Appeal has recently confirmed that, where an employee fails to object to a TUPE transfer, his employment will transfer to the purchasing company, even in a situation where he has given his notice of resignation prior to the transfer but where such notice expires post transfer." - This one isnt really valid, just thought it was interesting! Shows how its not cut and dry.

Now onto the view of the SFA and the players. They believe that a TUPE rejection can happen after the fact and this is what they are intending to do.

The case that they will use to try and prove this is the following :-

http://www.casecheck.co.uk/Default.aspx?tabid=1184&EntryID=14264

"Objecting to Transfer: In NEW ISG Ltd v Vernon, the High Court (Chancery Division) held a valid objection to a transfer by an employee can take place after the date of transfer in circumstances where the employee does not initially know the identity of the transferee and objects promptly as soon as he / she finds out. Such an objection shall have retrospective effect and prevents the operation of TUPE."

TUPE is regarded as a blackhole of law, and this case could go either way. I do however believe that case law examples put Green in the stronger position.

The only example of an after the fact TUPE rejection that has made it through the courts successfuly is one where the employe did not know the identity of the new employer before the transfer. Given the public nature of the Rangers story, and the fact they did hold a meeting prior to the TUPE, then I think this nullifies the case.

Who knows how it will go, but it will be interesting.

This will not stop the players leaving and getting new clubs, but they may very well find themself or their new employer getting hit with a large bill.

on bbc scotland news tonight there was a one line report saying that legal experts were saying the players may have left it too late to object to the transfer - you could be on to something

[Lisburnranger 36]

The players who don't want to be TUPE'd have allegedly still been driving about in club cars. Naismith has still been using rehab facilities. Things like this could be judged to be implied acceptance

[beerbelly 31]

things we can be certain of is some law firms will be rubbing their hands at the hefty fees they will be charging to determine who's right or wrong.

[Rfc#1. 1,877]

The players who don't want to be TUPE'd have allegedly still been driving about in club cars. Naismith has still been using rehab facilities. Things like this could be judged to be implied acceptance

Cunts got a fucken cheek,motor should be returned and we shouldn't be shelling out for his rehab. Cheeky bastard.

[Edmiston Drive 3,846]

Hi All,

(Those bored easily may want to stop reading now!)

Thought you might be interested in seeing some actual factual information about TUPE and why Green thinks he is correct, and why the SFA and unions believe they are correct.

I used to work in HR and have been involved both in setting up (mainly just the admin side, not really the legal side) and being TUPE'd myself.

Greens main point is that the players contracts have already transfered, its too late. Where does he get this idea?

Here are some sources :

http://www.xperthr.c...articleid=57199

If an employee in a TUPE situation refuses to transfer, to which employer should his or her resignation be submitted?

Logically, because the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE Regulations) have the effect that an employee's employment transfers to the new employer, an employee who refuses to transfer will not ever become an employee of the new employer. It follows that any resignation before or at the time of the transfer is best submitted to the original employer. However, regulation 4(7) states that, where an employee informs either the original employer or the new employer that he or she objects to becoming employed by the new employer, this will have the effect of preventing the employee's employment from transferring. This would appear to indicate that the resignation could in effect be submitted to either the original employer or the new employer. This will be the case provided that the resignation is submitted before or at the time of the transfer. If, on the other hand, the transfer has already taken place when the employee resigns, the resignation will have to be notified to the new employer, as the individual's employment will in fact have transferred before the resignation is submitted.

Here is an example of case law :-

http://www.addleshaw...&parent_id=3664

"On appeal, the EAT said that whether an employee has actually objected is a question of fact to be decided objectively in all the circumstances. A valid objection will prevent a transfer occurring and will end the employee's contract of employment on the date of the transfer. "

http://www.kennedys-...le/resignation/

"The Court of Appeal has recently confirmed that, where an employee fails to object to a TUPE transfer, his employment will transfer to the purchasing company, even in a situation where he has given his notice of resignation prior to the transfer but where such notice expires post transfer." - This one isnt really valid, just thought it was interesting! Shows how its not cut and dry.

Now onto the view of the SFA and the players. They believe that a TUPE rejection can happen after the fact and this is what they are intending to do.

The case that they will use to try and prove this is the following :-

http://www.casecheck...4&EntryID=14264

"Objecting to Transfer: In NEW ISG Ltd v Vernon, the High Court (Chancery Division) held a valid objection to a transfer by an employee can take place after the date of transfer in circumstances where the employee does not initially know the identity of the transferee and objects promptly as soon as he / she finds out. Such an objection shall have retrospective effect and prevents the operation of TUPE."

TUPE is regarded as a blackhole of law, and this case could go either way. I do however believe that case law examples put Green in the stronger position.

The only example of an after the fact TUPE rejection that has made it through the courts successfuly is one where the employe did not know the identity of the new employer before the transfer. Given the public nature of the Rangers story, and the fact they did hold a meeting prior to the TUPE, then I think this nullifies the case.

Who knows how it will go, but it will be interesting.

This will not stop the players leaving and getting new clubs, but they may very well find themself or their new employer getting hit with a large bill.

That was a fine summary bud the last part would be good for the club of you mean either transfer fee or if the player a settlement from them

[will_1974 204]

Have a rep

[californiadreamin52 339]

Love to see a few of our Rangers till I die, badge kissing players dragged back in sack cloth and ashes.

[cobe7 2]

Also reported on talksport that a top employment solicitor has told them that the players may have left it to late to walk.

[Lisburn Rangers 254]

The players who don't want to be TUPE'd have allegedly still been driving about in club cars. Naismith has still been using rehab facilities. Things like this could be judged to be implied acceptance

who are you???

[footygeek301 20]

I put a long post up about this at the weekend referring to some of the caselaw very helpfully summarised above. The players are not in the strongest position, but the regulations are there to protect their interests.

The key issue is whether they will be deemed to have accepted the terms of their transfer by their actions. Those objecting ASAP after transfer will be in the strongest position. Another factor is that TUPE requires certain notification procedures to be carried out, and if they haven't been this will be a factor in the players favour.

Green certainly has a case and is quite right, and very correctly standing up for Rangers rights. Players should be objecting before the transfer has taken place, and it was something they had a good bit of notice of.

[TheBluenose1972 1,405]

I hope Green is right no reason to believe he's lying about the 24 hour thing, i really hope he freezes those Traitor's out of football for as long as possible...especially Naismith and Whittaker!

[Ibroxblue 122]

Charles Green may have a point about Rangers players leaving it too late to object to a move to his newco club, says an employment lawyer.

A number of players, including Steven Davis and Allan McGregor, have declined a transfer to the new company citing their rights under TUPE regulations.

PFA Scotland believes they are now able to join a new club without compensation, but the former Sheffield United chief executive has vowed to challenge that theory.

Green, who said he had completed his £5.5m purchase of Rangers' assets on June 14, claimed players had to notify their objection within 24 hours under TUPE regulations.

Colin Leckey, partner in the sports and employment groups at law firm Lewis Silkin, believes Green might have a case, although there are several complicating factors.

An alleged lack of consultation, the fact players have not carried out any work or yet been paid, and a likely drop in playing levels could all work in the players' favour.

Leckey said: "On the face of it, the law is straightforward, and supportive of the players' position: under the TUPE regulations, if an employee objects, their contract does not transfer, and nor do any rights, powers, duties or liabilities connected with it.

"They have no right to any severance pay, but they do become free agents - clearly, this is the players' aim here.

"However, this morning's reports raise an intriguing question as to whether at least some of the players have left it too late.

"Legally, an employee's position is more clear-cut if they register their objection prior to a transfer. Where, as here, an objection is only raised post-transfer, case law suggests that the employee only has a more limited opportunity to object.

"Employees wanting to object post-transfer would need to make the case that they didn't know the identity of the proposed new employer before the transfer, that there were failures in relation to the obligation to inform and consult in advance of the transfer, or that they made it clear through their conduct that they did not accept the transfer.

"Clearly the players did know the identity of their new employer, and it would be hard for players to argue that they did not know about the transfer's potential implications given the widespread press coverage."

Players and union officials have been critical of Green over a lack of consultation and information - Steven Naismith, for example, claimed that the first contact he had with the chief executive was an email last Thursday.

Naismith added he had never met Green and had not been told who his investors were.

The transfer of assets was effectively plan B - when creditors rejected a deal - and happened when players were away.

Leckey said: "What should happen is that information and consultation occurs with representatives in advance of transfer. They are told the reasons and implications for it.

"If players only learned when they were sitting on the beach, I would expect much more scope for objecting."

The players' case is also helped by the fact they have not carried on working but the issue of transfer fees is now the key.

Leckey said: "While it seems likely that a court or tribunal would hold that a player registration was a right connected with an employment contract, and therefore not something which transfers if an employee successfully objects, the point is untested."

However, the uncertain league status of Green's club is another point in the players' favour.

"It is becoming increasingly apparent that newco Rangers is unlikely to be voted back into the Scottish Premier League, and may start the new season as low as Division Three," Leckey said.

"Where a TUPE transfer involves a 'substantial change in working conditions to the material detriment' of the person whose contract is transferred, they have a further right to treat the contract as terminated, and themselves as having been dismissed.

"Requiring elite footballers to drop three levels down the pyramid might just meet this test."

http://www.football365.com/rangers/7845117/Lawyer-Stars-may-have-left-it-too-late

[Cadman 352]

have the players collected a wage from the newco, if so - does that not tie them contractually to the newco? If they have accepted a wage then surely they have accepted the conditions attached to that wage.

[Shuggy 1,308]

Love to see a few of our Rangers till I die, badge kissing players dragged back in sack cloth and ashes.

We'll welcome back the Prodigal Sons ... and then sell them!

[Shuggy 1,308]

"This will not stop the players leaving and getting new clubs, but they may very well find themself or their new employer getting hit with a large bill."

The legal uncertainties may be enough to make the predator clubs back off.

[Bad Robot 21,512]

surely there must be some documentation given to the players/staff and if so Green should be making this public. I would imagine any of this must be in writing and surely a signature of acceptance or refusal is a must ?

[54andcounting 627]

The players who don't want to be TUPE'd have allegedly still been driving about in club cars. Naismith has still been using rehab facilities. Things like this could be judged to be implied acceptance

Spot on!!!

[two_coats 5]

What all the facts lead to is that a court case will decide and either way , players will struggle to register for other clubs while that goes on.

What club would take the chance of signing Fleck , Ness or McCabe only to be hit with a potential transfer fee/compensation package later via the courts.

For the likes of MacGregor/Naismith/Davis then it is a gamble worth paying for other clubs as they will hold a high transfer once signed.

Unfortunately TUPE was designed to protect the welfare of Employees and all these guys have done is use clever lawyers to find loopholes to gain a higher signing on fee and salary when they move.

Interesting point on TUPE is that the courts very rarely side with the Employee as this legislation is designed to protect Employee benefits, if they are deemed to take advantage of this legislation for a financial advantage then i believe Rangers will be due full compensation. This actually could result in higher compensation than the reduced transfer fees previously set.

I believe all these players have taken bad advice from Solicitors/Agents and will live to regret their foolish decision.

Also will be interesting to see if we can claim compensation for under 23's who leave. Similar to the Aluko .

[sergio 1,199]

I have said it before, If you do not transfer over as part of TUPE, you are still an employee of the old company, which as I write has not been liquidated. If we do not get money for the Players, you can bet your last fucking cent that HMRC will.

[BillBest72 0]

have the players collected a wage from the newco, if so - does that not tie them contractually to the newco? If they have accepted a wage then surely they have accepted the conditions attached to that wage.

please stop using newco , We are Rangers and always will be Rangers.

[LegendofCoop 17,481]

I doubt very much clubs will be in a hurry to sign any of the players on that list of shame, until this is all sorted out.

They could very well find themselves kicking their heels for the next 6 months, which pleases me somewhat.

[two_coats 5]

That's not technically correct, you have no choice in TUPE . If you are selected to move company via TUPE you have three very clear choices...

1. Move company and remain on same contract, although pensions do not for part of this.

2. Object to the transfer, effectively resigning but has to be done in a reasonable time

3. If TUPE transfer involves a change of work location > 25 miles you are deemed redundant and would receive contractual severance pay.

At no time do you stay in the old company, you have resigned from the new company. On the set day of TUPE you effectively transfer and resign.

[54andcounting 627]

That's not technically correct, you have no choice in TUPE . If you are selected to move company via TUPE you have three very clear choices...

1. Move company and remain on same contract, although pensions do not for part of this.

2. Object to the transfer, effectively resigning but has to be done in a reasonable time

3. If TUPE transfer involves a change of work location > 25 miles you are deemed redundant and would receive contractual severance pay.

At no time do you stay in the old company, you have resigned from the new company. On the set day of TUPE you effectively transfer and resign.

At last! someone that knows about TUPE, just a point on 3, not if you are a "mobile grade" or it was part of your contract to travel round the company (if it had more than one workplace)

[rm1972 3]

give them fk all shower of take all company cars off them and tell them to pay for their own treatment,what a fkin hard neck naismith is needing treatmment alright lol