The Feather Brooksbank and MediaCom Government TUPE challenge
The Feather Brooksbank and MediaCom Government TUPE challengeFeather 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.
New to The Drum
You will be sent a verification email. Click on the link in the email to post your comment.
Comments
What a nightmare. Its a wonder any accounts ever change hands. Surely if the Government want to kick start the economy they have to find a way of cutting through this red tape. It seems to put the staff before the client and although that might be nice but its not sustainable.
No wonder that employment lawyer has such a broad grin on his face.
Bloody hell...still, for once the man on the street is protected. Makes a change.
It is totally sustainable, if the move is based on cost and not creative merit then it is only right the winning agency/business takes on board the staff (lets face it, TUPE is very easy to manipulate if you really want to, but it does have a cost implication) that are wholly working on the business. Clients also have a responsibility when they decide to shift accounts that require specific expertise and have been resourced accordingly, it does make them think twice about why they are moving the business.
Oh yes lets just get rid of all that useless employment legislation, sod the poor buggers that get shafted by businesses trying to screw the cost down by moving accounts every 10 minutes.
Ours is a people business and all too often it is people who cause reviews. An irony of TUPE is that the reviewing client will end up with the same team with whom he /she has become disenchanted.
TUPE or not to TUPE that's the question!!
TUPE is not as easy to prove and deliver as that, it will depend on many things including future income, proving who worked on the account etc etc - I feel for the many people at Mediacom lets hope it gets sorted for all the people involved.
Write Your Comment