The Feather Brooksbank and MediaCom Government TUPE challenge
Feather Brooksbank will have to take on MediaCom staff in wake of the Scottish Government win. Top employment lawyer David Hoey of Brechin Tindal Oats looks at 10 things they will have to do.
Recent media hype surrounding Feather Brooksbank winning the Scottish Government’s account, as recently reported by the Drum, has underlined the need to ensure that the employment law consequences of such account transfers are fully considered. Such a transfer brings certain challenges in the employment law sphere.
One such challenge is the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) which protects employees whose employer transfers in certain situations. Those who operate in this sphere need to be alive to the potential for TUPE to apply, and its consequences, to minimise the risk of considerable liabilities and claims following the transfer of such lucrative work.
1) TUPE is triggered when a service or part of an organisation is transferred to a new company or provider
2) Organised groups of employees whose principal purpose was working on the account or service immediately before it was transferred would be affected by TUPE.
3) All employees affected by the transfer (whether transferring or not) must be informed and in most case consulted about the transfer.
4) The new employer must provide the old employer with certain information about proposals envisaged post-transfer
5) All transferring employee transfer to the new employer on the same terms and conditions as they enjoyed with the previous employer, subject to their right to object to the transfer and thereby resign. Some limited rights do not transfer such as pension and criminal liabilities.
6) There are only very limited ways in which terms and conditions can be changed following transfer where the reason is because of or related to the transfer.
7) The new employer will inherit all liabilities, claims and obligations in relation to transferring staff, including claims for discrimination and personal injury.
8) Employees have the right not to be dismissed for a reason related to the transfer, unless there is an economic, technical or organisational reason entailing change in the workforce. Liability for any breach of the provision is likely to pass to the new employer.
9) Collective agreements applicable to transferring employees will apply.
10) If redundancies will be considered after transfer considerable care will need to ensure a fair process is adopted, and the costs taken into account.