That's right. I suppose those in charge will take advice and decide whether to fight or settle, assuming that the rumours are true about the claims, although tribunal proceedings can be reported, in that they are not closed hearings, and so those making the applications risk disclosure of whatever rewards their employment reaped. If the rumours are true, it could amount to an expensive game of bluff for someone.

When I was TUPE'd in 2009, everyone who spent the majority of their time working for Company A on the contract which moved to Company B regardless of whether they were dead wood or vital members of staff. Company B then got rid of most of us when it got to the end of the consultation period...so good job or bad, the rules, which are so complex for the employers, have to be followed and it's far too easy to break them.

We went to tribunal because we had some union help, without which I wouldn't have had a clue I'd been unfairly treated!

From what i have been told, these are the facts, as far as i know them:

1) The Spirit of 1873 are being sued by former employees.
2) O'Hara's made every single employee redundant, The Spirit of 1873, then employed the staff it wanted.

Now as far as i understand, when a company ceases trading with debt, and staff lose their jobs and staff have been made effectively redundant and there are no funds to make redundancy payments, there is a government scheme to help employees out.

As far as i can see, if O'Haras have made redundancies, that is from the time before Spirit of 1873 took over the running of the club, the redundancy is the responsibility of either, O'Hara's and they need to explain, or the previous regime and they if no money was available will have to make do with whatever the Government backed scheme provides.

Either way, no concern of Spirit of 1873.

Think most new Employment Law is in there to protect the dead wood!

Based on my educated guessing (as most of us are) I would say the problem is that it isn't enough to say the company went into admin therefore it isn't anything to do with new company. I'd say the opposite. So1873 bought the company from an agent (i.e the administator but the company didn't actually cease trading so it was a straight purchase. And on that basis TUPE law applies.

I think the case will revolve around
1) how the administrators made the reducdancies
2) can it be proved that there is an equal job to those protesting in the new company. If we are talking about some one working in the shop it would be hard to contest. If however we are talking about a senior manager/director, those responsibilities could bedistributed elsewhere and therefore no new job exists for them to come back to (i.e. redundancy of role)

If Spirit of 1873 bought the club with no employees, as O'Hara had made them all redundant, how can they be held culpable?

Were the administrators acting for the club, and therefor Ted, or the RFL?

That's the whole point of the TUPE Regs, to stop employers doing that, otherwise employers looking to sell would just sack everyone (or make them "redundant"icon_wink.gif, sell the business, and then the new boss takes on whoever they want at a lower rate.

Also, it doesn't matter if you are made redundant in respect of a claim, as if you have been unfairly selected for redundancy, then there is a claim. That's why most firms opt for voluntaries first (which is usually taken up by those who will cost the firm the most), and then first in, first out.

Also, if you are not in fact redundant, you have just been dismissed, and so can sue for unfair dismissal. For instance, let's say they made the manager of the club shop redundant, sold the company, and then hired a different person to be the manager of the club shop, then the original manager was not made redundant, as their old job still exists. Redundancy means that the old job no longer exists. If, however, the shop carried on trading with a couple of assistants, and it was managed by a new overarching business manager, for example, then there has been redundancy.

If it was so easy to avoid claims, by just sacking people and then selling the business, then every employer would do it, and employees would have little protection. Employment rights and liabilities pass to new owners. Debts don't.

Neither, they act on behalf of the creditors.

That'll be Teds creditors then?

That'll be previous!!

You're wrong, in law. That is the whole point of the TUPE Regs, to ensure that new owners are responsible for the employment rights of the old owners. It doesn't matter that the old owners get shut. If they have a civil action for wrongful dismissal or unfair selection for redundancy, it is against the new owners, as they take on the employment obligations of the old owners.

Employment rights transfer. Debts don't.

I wouldn't want to speculate about this case specifically, but in a similar case could the new owners not claim it was fair dismissal on a misconduct charge?

Because the facts of the case are not available for public consumption, it's difficult, and, when this case concludes, there'll be some kind of confidentiality clause involved as a result.

And the other problem is if who we think have brought this case have, they'd never get a fair discussion on here, more a kangaroo court.

Sad to see the old leaks still seem to be around today.

I know nothing about the specifics of the case. I'm just talking in generalities on employment law.

The new owners could defend any action on any basis that the law allows.

Perhaps the misunderstanding in the previous post was because I suggested that TUPE stops an employer just getting rid of employees and selling the company on. In reality, employment law doesn't "stop" an employer doing anything. Employers are perfectly at liberty to mistreat their employees, and can discriminate on the basis of race, gender or sexuality. What employment law does is give employees a right to sue their former employers for their actions. It can't stop mistreatment, unfairness or discrimination. What it can do is give a right of redress that acts as an incentive not to act in that way.

Hence TUPE can't "stop" a former employer doing whatever it likes against its employees. What they do provide, however, is the ability of the former employees to take action against the new owners, which of course the new owner can defend.

I'm not saying which side will win, as I know nothing of the specifics (or even generalities, or even if there is a case being brought). What I am saying that it is not as simple as saying, "Ah, that was all O'Hara's".

Redundancy can happen when there is a Economical, Technical or Organisational need for change. I would have thought that it could very much be argued that there was economic need for reducing the wage bill at the club especially as there were sales of players at the same time.

Yes, it is sad to see this sort of thing. It doesn't reflect well on those concerned. That may be an issue for another time.

In the meantime, thanks to Slugger and those who actually know what they're talking about for explaining the situation to us laymen (and women).

The Tribunal would not look particularly favourably on a misconduct charge that was conjured out of thin air after the fact, to justify a dismissal or redundancy; furthermore, even if they did, the correct process (the organisations own disciplinary procedure) would have to have been followed to the letter, otherwise (I think I'm still right on this) the dismissal is automatically unfair.

I don't think the issue is the case for redundancy per se, it is whether the jobs can be genuinely be considered to have remained redundant under new ownership.

Not correct. If the employer can demonstrate is that the end result would have been the same had the process been followed, then it is highly unlikely that an unfair dismissal claim would be sucessful.

Cheers - I was a bit shaky on that part.

I beg to differ somewhat - if the process isn't followed then its automatically unfair.

If the scenario you paint is realised however then the tribunal judge has the capacity to find the dismissal unfair but not require that the claimant receives any financial recompence.

This is because the financial awards from tribunals relate to losses (relating to lost earnings, future likely earnings etc..) and if the claimants would have been dismissed anyway then there would not have been any losses.

I have professional experience of representing SMEs through this process.

I'll bow to you on that one. Although I specialised in employment law when I first qualified, it is fifteen years since I represented someone in an industrial tribunal. Been purely crime since then.

You might be called upon if the Richardsons get any payout.