TUPE - Is Green Right?

Hi All,

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 gettign hit with a large bill.