TUPE Fight - Legal Bits

[mitre_mouldmaster 21,511]

Hi all,

Many questions will be asked in the coming days around the topic of Rangers 'failing to consult' with employees prior to the TUPE.

No doubt the Scottish Press wont have a fecking clue what this means and just make stuff up, so here is a better source.

http://www.globalemploymentlaw.com/TUPE%20Employee%20protection%20on%20transfers.pdf

Pulling out the highlights, here are the areas of interest:-

'Dealing with staff representatives

TUPE requires employers to inform and in some cases consult appropriate

representatives’ of employees who are affected by a transfer. These are either:

> representatives of a trade union recognised by the employer (if the

affected employees in the category of workers covered by the recognition

agreement);'

i.e. Rangers had to notify the PFA, who have brought the case.

What information must be provided?

"The outgoing employer on a TUPE transfer must supply the following

information to the appropriate representatives:

> the fact that the transfer is to take place, when it will occur and the

reasons for it;

> the implications of the transfer for the affected employees; and

> any ‘measures’ (i.e. material changes) that it is envisaged will be taken

in connection with the transfer in relation to affected employees"

Measures are material changes to the employment of the staff member after the transfer. Usually this would be things like change of work location, or such like. There are likely to be no 'measures' in the Rangers TUPE.

What does consultation involve?

The duty to consult under TUPE arises only if it is envisaged that measures will be taken in relation to any of the affected employees. If no such measures are envisaged, the obligation is merely to provide information to the representatives. In this situation, the information can probably safely be handed over at the point of transfer.

Note, if there are no 'measures' which there probably would not have been, then consultation can happen at the point of transfer. This will be key.

What are the sanctions for failing to comply?

If an employment tribunal upholds a complaint of failure to inform/consult,

it makes a declaration to that effect and may order the employer to pay

compensation to the affected employees. This can be up to 13 weeks’ pay, depending on what the tribunal considers just and equitable having regard to the seriousness of the employer’s breach. It is known as a ‘protective award’. Tribunals start at the maximum and then work downwards if the employer has good arguments in mitigation or can show partial compliance. The normal cap on a week’s pay (currently £310) does not apply for these purposes.

An aggrieved representative or employee can bring a claim against either or both of the employers for failure to consult. They have to sort out between themselves how to apportion liability, although the outgoing employer should not be liable for failures wholly attributable to the incoming employer.

Since there were probably no measures in the Rangers case, there is very little the NewCo had to pass to OldCo, so the blame on this one will be heavily weighted to the OldCo.

[Carsons Dog 9,878]

Charles Green gas the best mitigation you could get

He was trying to save the club

[Bad Robot 21,513]

They were on a reduced wage so I'm just wondering if that has any bearing on the TUPE rules or anything to do with the reason they went for constructive dismissal?

[mitre_mouldmaster 21,511]

They were on a reduced wage so I'm just wondering if that has any bearing on the TUPE rules or anything to do with the reason they went for constructive dismissal?

Doubt it as it was optional.

Regardless, this would have returned to full wage after the TUPE.

[evenstevens 945]

Have handled quite a few TUPE transfers before.

I said at the time that the oldco were not doing enough with the players around the transfer but similarly Green did not appear to have any meetings with the staff prior to the transfer date.

The duty to consult should've extended to meeting with players and/or pfa to address any issues they had about the potential transfer. Failing to do so would prob be considered a failure to consult.

That said, the penalty will be max of a couple week wages as the mitigation would be around saving the club and I suspect Green wasn't too fussed if some just left at point of transfer as it saved our wage bill.

[IanFerguson2012 123]

Thanks for the information. I don;t know if the players' union can raise an employment tribunal action though. I though it was for the employee to do so maybe they just organised it (out of a desire to help the players who have already got other jobs???) and gotten the players to sign the forms.

[Bluepeter9 5,167]

Have handled quite a few TUPE transfers before.

I said at the time that the oldco were not doing enough with the players around the transfer but similarly Green did not appear to have any meetings with the staff prior to the transfer date.

The duty to consult should've extended to meeting with players and/or pfa to address any issues they had about the potential transfer. Failing to do so would prob be considered a failure to consult.

That said, the penalty will be max of a couple week wages as the mitigation would be around saving the club and I suspect Green wasn't too fussed if some just left at point of transfer as it saved our wage bill.

Given that the SPFA (as I understand) were in talking to Rangers and the players during all this so a bit cheeky to say they were not consulted (i know there are technicalities here as well!) but this seems a bit strange - especially as they named players like Lee McCulloch who is saying he was NOT consulted and wants nothing to do with the process.