surly it doesn't mean they should as take the dead wood as well if deemed to be of no use to the new employer

Not an employment lawyer, and so I am making educated guesses only here, but doesn't administration just involve the administrators running the old business and selling it to a new one. The TUPE regs protect employees, not other creditors, who had a relationship with the previous limited company, not the new one.

So employee rights would transfer to the new company, but not the debts. For instance, HMRC were owed money by the old company. It's got nothing to do with Spirit of 1873 Limited. But the TUPE regs protect employee rights, and ensure that they are transferred to the new one, otherwise employers could get out of their employment obligations by buying and selling the company every year.

Or something.

There has been a recent precedent set by an Employment Tribunal (Ms A.E Olds vs Late Editions Ltd) that TUPE regulations do indeed apply to businesses bought out of administration; that was previously held not to be the case.

The key issue could well be who made them redundant - O'Hara's or Spirit of 1873.

Just done a quick google and found this in an Insolvency Service Guide

"If you are dismissed in the course of a transfer of the business and the reason for the dismissal
is genuine redundancy, we can pay you a redundancy payment and a notice payment. However,
if the reason for the dismissal is the transfer itself, this is normally treated as unfair dismissal and
not redundancy. You may be able to claim compensation for unfair dismissal from the new owner.
You may have to apply to an employment tribunal to deal with any dispute. There are different
time limits for applying, but if you apply within 3 months of your dismissal, you should not be out
of time."

Reading this I interpret it as they may have a claim if they were dismissed as a condition of the purchase, but if a genuine redundancy all they would be entitled to would some form of payment from the Insolvency Service.

"TUPE will operate in the usual way to acquisitions of business out of administration, transferring to the acquirer both those employees who are “in scope” (and their accrued liabilities) and, potentially, claims from those dismissed pre-transfer."
- from the authority you have cited
"TUPE will apply as normal in relation to transactions out of administration including pre-packs. Purchasers of insolvent businesses need to factor in to their commercial considerations, negotiations and deal strategy the transfer of staff who are “in scope”, their accrued liabilities and, potentially, claims from those dismissed pre-transfer in circumstances where the administrator may well be unable and unwilling to indemnify the acquirer against the relevant liabilities adequately or at all"
- the analysis of the law firm who reported it and put it on the net. Spirit of 1873 Limited may well be liable.

Indeed - which could go to two possibilities:

1. your earlier point that they knew about it and were prepared to take the risk, deeming an award by the ET as an acceptable cost of getting rid.
2. they didn't know about it and have now been hit with ET claims from four individuals who, on the face of it, have a legitimate claim, even if the circumstances make it seem morally repugnant.

Time will tell I guess.

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.