Information and Consultation in TUPE – the SPFA’s case against Rangers

Information and Consultation in TUPE – the SPFA’s case against Rangers

By Mark McWilliams, Trainee Solicitor at Leathes Prior

Information and Consultation in TUPE - the SPFA’s case against RangersThe Professional Football Association for Scotland (SPFA) has brought a claim at the Employment Tribunal against Rangers FC for the old club’s failure to inform and consult about the TUPE transfer of players from the oldco to the newco.

The latest development in the ongoing saga that now sees the Ibrox side now playing in the lowest tier of Scottish league football, the claim has attracted an understandable amount of media attention but the complexity of this type of claim has led to some misunderstandings. In this article, I aim to clear up some of the misconceptions about who is bringing the claim and why.

Firstly, it is worth noting that the action is being referred to (even by the SPFA in their statement) as a claim for a protective award. A protective award actually is a separate type of claim (under the Trade Union Labour Relations (Consolidation) Act 1992) granted where there is a failure to consult employee representatives over prospective collective redundancies. The award is very similar (capped at 90 days’ pay rather than 13 weeks’) but the issue in the Rangers case is a transfer, not redundancies so the SPFA claim is not for the protective award. Wordy though it is, the proper description of this case is a claim for a failure to inform and consult in relation to the transfer of an undertaking.

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) contain various protections for employees who are to be transferred from one employer (the transferor) to another (the transferee). One obligation (which had not existed under the previous regulations) is that the transferor has a duty to inform and consult appropriate representatives of affected employees.

This is a very particular requirement. The obligations are not fulfilled by telling the affected employees that the transfer will happen, or by consulting with them individually. Appropriate representatives must be consulted.

The distinction between these interested parties must be clear: the affected employees are those employees whose jobs may be threatened by the transfer; the appropriate representatives are those who speak for the affected employees. If there is a recognised trade union, that union’s representatives will be the appropriate representatives.

Claims for failures to consult may be brought by individual affected employees, or by their representatives. Where there is a union, the claim may be brought by the union and does not necessarily have to attach to the employees. In the Rangers case, the affected employees were the players (others employed by the oldco would have been affected too but this claim concerns only the players) and their appropriate representatives are representatives from the recognised players’ union, the SPFA.

Some of the press reports have stated that the claim is being brought by 67 players – that is the number of affected employees who were members of the union; in this case, the number of professional players on the oldco’s books. The claim is not being brought by them – it is being brought by the SPFA as the employee representatives who claim not to have been consulted. It is therefore, not very unusual that some of the players appear not to have known that the claim was being brought.

The compensation available for this type of breach is such compensation as the tribunal considers just and equitable subject to a maximum of 13 weeks’ pay. If a union wins this type of claim, the compensation is available to the affected employees represented by that union. It is up to those employees individually whether or not they wish to participate in the claim. In this case, then, if the SFPA win the claim, each player will be entitled to the sum that the tribunal determines.

Perhaps unsurprisingly, some players are already distancing themselves from the claim. The individual players must decide whether they will seek any compensation but they cannot prevent the SPFA from bringing the claim. The SPFA have asserted in their statement on the case that their motive is not financial. If they are successful, it may be that no player takes the compensation but the SPFA my be satisfied merely with a declaration they should have been consulted but were not.

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