Charles Green: TUPE Or Not TUPE – Is That Still The Question?
An unforeseen side-effect of the Rangers International Football Club share issue was the regurgitation of the “TUPE” issue surrounding the transfer of old Rangers players to Charles Green’s new Rangers on June 14th. The share prospectus, issued on December 5th, referenced an Employment Tribunal claim against Rangers Football Club Limited “on behalf of 67 un-named players.” Caught unawares by this ‘revelation,’ sections of the Scottish press splashed with what they thought was a new legal nightmare for Rangers. However, it wasn’t ‘new’ at all. Green’s half-successful share issue campaign – institutional investors over-subscribing in search of early profits, supporters excusably under-subscribing in tough economic times – has commanded most of his oratorical energies recently. Previously, he devoted much of them to Rangers players who “objected” to their transfer of employers from old to new Rangers, after Rangers’ CVA failed. Green appeared not to expect any such objections and made every effort to appear affronted by them. Without claiming deep expertise, I have knowledge and personal experience of TUPE, or ‘Transfer of Undertaking (Protection of Employment)’ legislation, having been ‘TUPE-transferred’ myself and been a union representative of other transferees. The legislation prevents employment conditions being altered detrimentally as a direct result of a transfer. It also allows employees to ‘object’ to it, the issue to which TUPE has applied most contentiously to Rangers.
Rangers players were represented by agents and Scotland’s Professional Footballers’ Association (PFA Scotland). Employee representatives were entitled to formal consultation on the transfer. Players were entitled to notification of the transfer itself (formally – not just by reading about it in the Daily Record), the reasons for it and the “legal, economic and social implications” of it. And contracts would automatically transfer unless “prior to the transfer or upon being notified of it, the employee objects.” In that event, players could leave Rangers without a breach of contract. For all the understanding of this legislation displayed by some protagonists, the ‘transfer of undertaking’ might as well have been about funeral arrangements. But whether Green really misunderstood it seems unlikely.
There was certainly no public acknowledgement of formal notification to the players prior to the transfer. And each senior Rangers official appeared to have a different version of the process. Newly-installed chairman Malcolm Murray said on June 15th that “it was still a bit of a grey area” and that while “most (players) are on holiday” Rangers would “get Ally (McCoist) to talk to them…as soon as they are back.” McCoist, though, was one of the transferees. “Formal” notification wasn’t his role at all. Green, meanwhile, appeared to make things up as he went along, telling reporters on June 27th that “it is clear in the regulations, if someone has an objection they have to notify within 24 hours. This is nearly two weeks.” He didn’t specify which 24 hours and he didn’t give anyone time to ask “where in the regulations does it say that?” – not least because the answer was… er… nowhere.
Seven days earlier Green admitted that he wouldn’t be “sitting down with (the players) and explaining where we are” until “next week.” By then, a number of them had formally objected to the transfer. And Green immediately accused them of “being ready to breach their contracts” merely to “secure handsome signing-on fees (from) other clubs while Rangers get nothing.” PFA Scotland had already clarified that they had received no formal notification or consultation. On June 13th, their CEO Fraser Wishart said he was “delighted…that Mr Green and (Rangers’ administrators) Duff and Phelps agree with (us) that TUPE applies to the players’ contracts…in a transfer to a newco.” But, like he knew what was coming, he added: “TUPE affords everybody the statutory right to object to the transfer – employers cannot select which parts of TUPE they wish to apply.”
PFA Scotland were not consulted until June 25th, by which time six players had objected. And players were certainly not informed of the transfer’s “legal, economic and social implications,” as no-one was sure what they were. “There is too much uncertainty over what division (Rangers) will be playing in,” said ‘objector’ Steven Naismith, correctly. And it wasn’t even certain that Rangers would even BE playing. Green, though, insisted that contracts automatically transferred under TUPE, regardless of other issues. He took the matter to the SFA for arbitration, to get compensation for breach of contract. And by mid-July, PFA Scotland had raised the issue of a “protective award claim” over Rangers’ failure to inform and consult.
This pretty much remains the situation. And the situation remains ill-understood. After what it called the “reaction to the matter becoming public,” a PFA Scotland statement on December 11th explained the “what,” “why” and “on whose behalf” of their claim. Within hours Green responded. And three days later, McCoist added his top pence worth. Wishart sought to “clearly set out” PFA Scotland’s position “to prevent any further misunderstanding” after the Record’s rather outlandish claims about the action.
According to the Record’s Keith Jackson (so it must be true…), the union were taking the action on behalf of players who had no interest in or knowledge of it, had not given permission for it and were embarrassed by it. Oh…and the union were suing Rangers for 90 days’ pay for each player. Wishart explained that this, and the share prospectus reference to the matter, was cods. Their claim was “raised in the name of PFA Scotland only” and, as Wishart noted with increasing frustration, “is one legal claim and has not been lodged in the name of any player, let alone some 67 individual players, as has been reported. “It is quite simply inaccurate therefore to suggest that PFA Scotland has acted here without instruction. PFA Scotland does not require instructions to raise a court action in its own name.”
The statement explained that PFA Scotland had a legal entitlement to be consulted “in advance of a TUPE transfer.” Yet “unfortunately,” Wishart sighed, administrators Duff and Phelps failed to enter into any consultation whatsoever with the players and PFA Scotland,” even after an April reminder “of the players’ rights under the TUPE legislation.” Rangers captain Lee McCulloch had told the Record that PFA Scotland were given “no mandate to sue” the club. Wishart responded: “It may be that no players will pursue this… in fact, many of the players have already said they will waive this entitlement.” He then “stressed” that the motive behind the claim had “never been financial” but rather “an important point of principle, since our rights as representatives of the players were wholly disregarded by those involved in the TUPE transfer.”
Green’s statement repeated his summertime arguments. The players objecting to the transfer had “unilaterally terminated their contracts in an unlawful manner.” Their objections were “incompetent.” And if Rangers could not get compensation – “from the players and their clubs” – through an SFA Arbitration Tribunal, “there are other routes available.” He also offered his “explanation” of PFA Scotland’s claim, repeating factual errors which Wishart had just corrected, in a statement Green must have seen, as he quoted from it. The claim was “supposedly on behalf of 67 un-named players,” although “fans will note how club captain McCulloch and a number of other players have quickly disassociated themselves from this action…and have already waived any right to participate in this claim.” As Wishart had just explained.
Green added that “a number of players whose contracts were due to terminate at the end of last season and who were never in line to transfer under TUPE have been included in the numbers, “…numbers which had come from Rangers’ share prospectus, not PFA Scotland. He then told a tale of “the father of one player calling, quite furious, to say that his son has been attached to an action he knew nothing about,” adding that “PFA Scotland has confirmed as much in its statement earlier today,” which was simply untrue. And he declared that “in reality, we are talking about six players who have form of dispute, rather than 67,” while “the fact that so many of the supposed 67 players are still at Ibrox and have indicated they have no part in this action begs the question why it is being raised at all” – the question which Wishart had already answered.
Green had his own answer: “The purpose of the failure to consult claim is therefore not to safeguard the rights of the 67 players but to attempt to persuade the club to abandon its legitimate pursuit of compensation from players who, in the club’s view, walked out on their contracts of employment.” Well, yes. Yet this legitimate negotiating tactic was presented as a bad thing, while Jackson’s news article in the Record called it “clumsy.” Green is, of course, not one for persuasion on any matter. And in this case, there’s no reason why he should be. So it’s off to arbitration for Green and PFA Scotland. And NOT 67 players, named or un-named.
McCoist’s take was instructive. Despite three days in which he could have been set straight, he was still allowed to repeat the prospectus errors, despite admitting that “maybe there’s more to it than I’m seeing,” and that “I don’t know all the facts.” He showed a touching faith that “somebody will correct me if I’m wrong.” But when he was… they didn’t, as when he said “it was my job to inform the players” of their rights under TUPE.Particularly instructive, though, was his response to objectors such as Naismith, who this week said “I wouldn’t go back to Ibrox for a game” because “a lot of the fans aren’t happy with what went on.” An unsympathetic McCoist simply said that such players had to “live with” their decisions. As Naismith correctly noted, he and other objectors had last season taken a 75% pay cut “to try to stop the club getting liquidated.” Yet McCoist said the club had “every right” to pursue them for “financial benefits.” But he added, intriguingly, that “as manager I have to – and will – back that stance,” a hint perhaps of some discomfort with Green’s bullish stance.
Green’s bullishness has dominated the “TUPE” issue. He has all-too-often resembled a Thatcherite bully-boy, riding roughshod over workers’ rights, backed by a tabloid press all-too-willingly engaging in lazy, ill-informed union-bashing, like Jackson in the Record. Green had, for instance, freedom to portray PFA Scotland – and players such as Naismith – as unprincipled money-grabbers…an irony which could surely only be lost on Americans. And while a Rangers share prospectus contained the misleading information about PFA Scotland’s action, Green surely approved the relevant paragraph, even if he didn’t pen it. So… yet more Charles Green bullishness, bullying and borderline deception. Doubtless some readers have grown weary of reading about it. But how long must it take before they grow weary of HIM. That really IS the question.
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