[Jonny jones]

hi guys

i have just given notice to one of my guys that i am reducing his hours from 45hrs to 40hrs, this is because i took him over as tupe oct 08 and he was getting 45hrs for working 8hr days and getting paid for his lunch time too which brought it up as a 45hr paid working week,
what i have done i given him a months notice of change of hours, what ive told him is that i am not paying for his lunch break, then resulting to a 40hr week,

what a surprise he is not happy, he is starting to cause a stink now and ive gone on the acas website and it states if he is not happy i can dismiss him and offer him a new contract and a new job, but if i do that he can take me to court for wrongfull dismaissal,
if i impose this new contract on him he can take me to tribunal

is there nothing out there that i can do to get this fella to take the contract without being dragged through court,


HELP please

tahnx jonny

[Pristine Clean]

Firstly,

You cannot do what you have done. He already has a case against you.

Also would you be happy if someone did that to you. I think not! Thats why these rules are there to protect employees. And rightly so. What you have done is unfair.

What are his exact start and finish times on the contract.

The only reason you can do such a thing is for an ETO Reason. Economical, Technical, Organisational. Which all is a grey area.

With TUPE if it is in his original contract you have to take him on under his original contract. Everything gets transfered over and remains the same. Pensions are a little different.

You should have approached this very differently. If you want to alter things  like hours, pay, holiday you will have to wait 6 months. then issue an advance warning.

I would speak to a professional HR department. Either out sourced. If you are not a large company wich it sounds as though you are not you could join up with a small firm that can guide you and will guide you through the legal steps.

TUPE is a headache. I would continue paying his lunch hour. I would not dismiss him but record everything in writting and record conversations with his permission. You do have the right to bring them up to standard of work and can dismiss on the grounds of behaviour. But I would avoid this as you have started incorrectly.

At a later date you could off him a different job title and a new contract then that is a completely different set of rules.



all the best


Dave

[Robert Parry]

Dave is quite correct!

Employment legislation is a very complex field, lots of companies have no real idea of what they are doing and gain advice from websites and forums such as this meaning that they very frequently land themselves in front of a tribunal when an employee invokes their rights.

In the past I have have tried to to warn you about the dangers of relying on websites (even govt sites) and forums, and other business practices that leave a little to be desired, which you have chosen to ignore, probably due to the real costs that must be incurred when you become an employer.

I will offer no further advice, as I do not have all the details to hand, other than this, find yourself a decent HR company, ensure that they have indemnity insurance, be 100% honest with them, warts and all!

Look at your pricing structure, and ensure that your prices reflect the very real costs of the business, get help and advice from professionals in HR and Health & Safety, this will of course cost real money, most of your competion will not pay these costs, sure their websites will state that they follow all legislation, but most have no real idea of their legal obligations.

This mistake, or one made in the future, could have huge financial implications, for you and your company, your insurance may refuse to pay out because you did not follow the regulations, added to the fact that just recently the fines were increased, you could be very well find yourself having to find any settlement yourself, plus no doubt, a huge increase in your liability premium.

AS the economy worsens, these types of problems will only increase, as staff will do all they can to protect their own positions, in all recessions claims against employers rise sharply, any employer should take this into account.

Regards,

Rob

[Phild]

Ah TUPE and employee legislation. Doesn't the Government really support you as an employer!

Remember all the real jobs come from little businesses like us NOT your local council or factory which will move to Lithuania like a shot to save a few bob.

The previous advice was spot on as employment legislation is a minefield. Even if you do everything right and it ends up at a tribunal (ET) you will come away with the feeling that everything is stacked against you and even if you win it will cost you in time, money and worry.

Right, that's the negatives out of the way. Forget about wallowing in angst and contact a solicitor straightway who specialises in employee legislation. I would go for a good small practitioner who is recommended. Agree a fee for 30 minutes advice. Take notes and follow them to the letter.

The advice will be along the lines of:

Formally (in writing) invite him to a meeting. Allow a few days reasonable notice, notify him that he can have a work colleague or union rep with him. Lay out in the invite exactly what you want to talk about and why.

At the meeting explain exactly what you are trying to do and ask the employee does he have any suggestions to achieve the same results. Listen to what he has to say but say you will have to consider the matter further and will arrange another meeting in a few days. Don't get involved in heated discussions. All you are doing here is being seen to give the employee the opportunity to put forward their suggestions.

Record the meeting in writing. Both of you sign and keep a copy of the meeting notes.

Consider the points your employee has made as they may be good. In this instance though I am going to assume they are not.

Arrange the next meeting c/w notice and the offer to be accompanied. At this meeting tell the employee you have considered all the points raised but that in order to achieve the economic savings you need you are going to have to change his contract so that he is not paid for 5 hours lunch each week. You then must give him written notice of the proposed change. Check his contract of employment (if he has one) for any weird notice periods but you should be safe with one week's notice for each completed year of employment. NB All his pre-TUPE transfer employment counts as if he has always worked for you. This means in a worse case scenario you have to give up to 13 weeks notice of the contractual change.

The above should mirror what your solicitor advises. If it doesn't go with your solicitors advice!

It might also seem a bit of a fanny on. Believe me when you are standing in an ET you will be glad as you will be seen to have tried to do things properly. I don't know if you have other staff but you doing things properly and methodically sends out a powerful message to them.

Best of luck.

[Pristine Clean]

Arrange the next meeting c/w notice and the offer to be accompanied. At this meeting tell the employee you have considered all the points raised but that in order to achieve the economic savings you need you are going to have to change his contract so that he is not paid for 5 hours lunch each week. You then must give him written notice of the proposed change. Check his contract of employment (if he has one) for any weird notice periods but you should be safe with one week's notice for each completed year of employment. NB All his pre-TUPE transfer employment counts as if he has always worked for you. This means in a worse case scenario you have to give up to 13 weeks notice of the contractual change.

The above should mirror what your solicitor advises. If it doesn't go with your solicitors advice!



Best of luck.

Hi Phild,

Jonny wont be able to do that. Jonny cannot just cut back on 5 hour pay per week just because of a letter stating an economic crisis. Jonny will need to prove that she/he cannot afford to pay his original contracted wages.

Just because Jonny does not want to pay an employee for sitting on there backside is not an ETO reason.

The contracts (Employment contracts) should have been reviewed prior to a bid for the cleaning contract to allow for this. Jonny's employee has every right to be paid what he was being paid originally prior the takeover. And the employee will win.

Also they cannot just be made redundant. As this would be seen as unfair and related to the take over.

And the actual change of contacts will be longer than 13 weeks. Its 6 months. As TUPE has taken place.

So off to a HR company it is and I would avoid a small solicitor. You need a firm with the right backing and knowledge.

Dave

 

[Andy Foster]

Try these guys, they are reasonably priced and very good at what they do.

http://www.greystonesconsulting.co.uk/

[Gilbert Sprous]

I have recently went through something very similiar and I must say that there are a few things I would have to disagree with and a few I agree with on this thread.  I would definitely agree that employment legislation in England is very hard to comply with, mainly because some of the legislation is very vague and it is left up to ET's to sort it out if necesary, which makes a lot of the legislation subjective and up to interpretation.  When I started with a new contract, which for me was pretty large, the TUPE employees were with the council, and 4 of 7 had Union Reps.  Every time I mentioned anything the union reps would tell me "if you do that we will take you to tribunal".  So I hired a company called MHL.  They specialise in Employment Law advice and will idemify you against any tribunal or court judgements as long as you follow their advice.  There are several companies out there so I would shop around and dont accept their first offer at a price it is negotiable.  For three years service they first asked me for close to 4000 pounds, I was able to get it for less than 25% of that in the end.

The 6 months would only be a guide line, what the legislation states is that you can not change the employees terms and conditions solely because of a reason related to the tranfer.  It could be argued that even after a year that the reason for a change is solely because of the transfer.  It is not just terms and conditions but customs and pratice that transfers also.  If you can prove an ETO then you can change things but it still a very thin line thast has to be followed.

I would ague that it could be possible to change the contract if the right guidlines are followed. 

The situation that I had was with the transfer from the council we had 4 of 7 employees that worked 11.5 hours per week but got paid for 15.  It was not in their contracts but had been going on for some years.  When I made the announcement that I would not continue this the unnions were on me saying that I wuld be taken to tribunal because it was custom and practice and that I had no choice but to continue the overpayment.  After I investihgated it a bit, it seemed that the HR department at the coucil did not know about the overpayment, so ther was a disconnect between the management and the people who siggn the checks.  I went back to the unions and told them that itf the HR department would have found out they would have taken the measures to get this on track and that I could not be held accountable for the mismanagement of the area manager from the council.  After that conversation all the employees agreed to work their contracted hours.  Now one thing I need to point out is that I could not reduce their contractual hours to 11.5 but I could enforce the 15 hours they were contracted for.  Now that I have that straight when the first person left through natural attrition I did not replace them and I was able to divide that work up with the extra hours that I now had.

One problem that I see with your transfer is that it does not seem that you tried to do anything about it right away.  My question would be is it custom and pratice on your part now or not.  I would start with his contract, does it state that he will have a paid break or does it state that he has 45 contracted hours.  I tmay be that you give him an upaid break of 30 minutes for lunch and hold him to his 45 hours.  Is ther e a reason other than just because of the transfer that you are changing his hours?  If you are reviewing all your contracts and doing what is necessary to meet a specific margin on each then you may have grounds for a change because you are reviewing non transfered contracts also.

One thing I will say is that all opinions posted here are from each individuals view point from the information that you have gave.  None of us are employment law specialists (I dont think) and we will not indemnify you in case of tribunal or court.  I would suggest that it is probably possible to get this change done but the wasy you have went forward with it will get you landed with a settlement.  Iwould seek advice on how to approach your specific situation. 

But one thing that I will say is that I disagree with Dave saying that you will have to pay it regardless and I will say that with a few extra movemnts on my part what Phil stated was a lot of what was  advised by MHL, with the specifics of my situation included in the letter.  Sometimes employees are transferred with really cushy terms and conditions, and I would have to disagree that we as the new contractor shuld honor every little thing.  If they were able to get over for a while well good for them but lets look at the reall picture.  The contract I took over is paid for with our tax money.  We paid 3.5 hours x4 for well over 10 years.  When you do the math and include that we paid the extra for their pensions also the total comes to close to 100,000 pounds the tax payer paid for this.  If an MP did this we would be up in arms right now.  Just because somone has been getting over for quite a while does not make it right.  If an employee deserves something we should willing give it to them, that is part of our obligation as an employer, but if they dont desreve it, and I would say an hour of paid luch is is a bit extensive, then we should take the steps necessary to rectify the situation.  That is called proactive management.

[Pristine Clean]

Hi Gilbert

I will say MHL are very good.
Although Jonny may not have to pay the £4000 as I think they do it on company size, number of employees or turnover.

They also do the H&S as well as the HR Packages. You dont have to take out both.

We have had similar issues, regarding paying employees set amounts etc. We have had to pay it in the past. And have been to hearings so each case is awarded on its own merrits.

Dave
 

[Gilbert Sprous]

I am sure that MHL do it through either company size or turnover as you say, probably more likely number of employees.  They did come with their initial offer at 4000 but as I said, they came down substantially, I think their salesmen/women come in at their highest price first but are willing to come down if you are hesitant. 

I will say that since using them I have been very happy.  You recieve 24/7 advice line and contracts Terms and Conditions.  The first set is completely drawn up for you and then you recieve a template.  I think the advice is where they earn their money with me.  I rarely do anything without picking up the phone.  They also dont mind if you strike up a raport with one of their HR specialists.  I use the same one every time and ask for him specificaly because I feel he knows me now and how I would like to go forward and also I like the way he will work with issues.  I feel comfortable with his advice.  So every time I call I ask for Rhys and if he is busy he will return my call the same day.

Gilbert

[Phild]

Hi Gilbert, I wasn't sure it was you till I saw the giveaway "math" ;-)

I hope you have got that Numatic scrubber working OK now. Phil D

[Gilbert Sprous]

Hello Phil,

Yeah, it works great now.  It needed a new lead and got a guy local here to put it on.  The strands had broken up, there was enough power to light the power switch but not enough to run the scruber.  So it had me a little confused (not hard to confuse me though).  It is serving its purpose with pride and vigor.  I hope all is well with you and all the folks way up north.  I have started noticing some of your advertising in the area and the key words for nottingham is bringing your site up also. 

Cheers

Gilbert

[Jonny jones]

hi gilbert

thanx for the positive notes about my situation,  but he is adamant that he will not be reduced to 40hrs, sorry but trying to make sense of it all, the reason i am doing this is becaues i feel why should i be paying him for his lunch break,

1,  can i ask for a copy of his origional contract, (if he has one) because i havent given him a new one when i took over, and if it states on there that he is contracted to work 45 hrs a week could i tell him that i will not be paying him for breaks and he has to work then from 8 - 6 as this is 9 hours working time, this means that i dont pay him for his lunch hour and he still gets his 45 hrs.

happy days

[Gilbert Sprous]

You should have been given TUPE information that is required by law from the outgoing contractor.  The information has to be provided within two weeks of taking over the contract.  You also have requirements under TUPE, if you did not request the information then you may have limited your recourse.  I have recieved actual contracts from some of the employees that I have transferred to me.  Your first step would be to contact the outgoing contractor and request the contract and TUPE information. 

You may have a few other options also.  If the current employee was not working on the site for very long before the transfer, TUPE does not hold as much weight.  But again you have been paying this guy for the last year under these terms and conditions if not custom and practice. 

You could also ask the employee to provide you a copy of the contract, but saying that if the contract is not favorable to the situation he wants, why would he provide it. 


The out going contractor could be under some legal obligations under tribunal for not meeting their requirements to you, which could be a minimum of 500 pounds per employee, it could be something that you mention when you ask for a copy of the contract.

As far as making him work the 9 hours you should be careful of work time dircetivies that states they can only work for so long without a break.  There is nothing that says breaks have to be paid but they have to be given time to wind down.

I think by waiting for so long you have put yourself in a situation that may take some doing to get out of.  Have yo considered splitting the difference with him?  Perhaps you could start by reducing the break that is paid to 1/2 hour and the other 1/2 not paid.  You may find that he is more partial to this and you may also find that he would then only take a 30 minute break.  Is there reason for the hour break like the time to get to a break area or the need to have him on site for 9 hours and it would not make sense for him to leave. 

Again I would suggest legal advice especailly since it has been a year since you took on the contract.  Ther is a lot of stuff on line in regards to TUPE and your obligations and the out going contractors obligations.  But if you have a reason to change the contract you will be able to do it but make sure you have everything in order because if you dont they will eat you for lunch, excuse the little pun there.

Gilber

[jasonl]

In this kind of situation I have previously done the following, I am not saying it is ethical , I am saying it was the best course of action for my well being , and for the company wellbeing.

Find a sympathetic customer, tell them your problems with this employee ,, get the customer to write to you and complain that this particular employee is a pain, troublesome, whatever reason , get the customer to refuse to have this employee on site. Because of this you can no longer employ this person at any other site , the only suitable work you have is for 20 hours a week. It is called a 3rd party dismissal , all the big cleaning companies do this every day many times over. Like I said it is not right , but it is your company , your livlihood vs thiers.

[Jonny jones]

seeking legal advicer on this one guys, the way i look at it is that the empolyers balls are nackered

so will let you know on the situation over the weekend

[Robert Parry]

Johnny would be very very lucky to find an HR Consultant to have anything to do with this case, as he has already started this process, I would be shocked if he could avail himself of any indemnity scheme offered by any consultants, they may be prepared to offer him advice on the current situation, after paying their fee, obviously, but as I said before, I think that they would refuse to cover the cost of any award made against him even after following their advice!

The major problem with the TUPE legislation, other than employers lack of knowledge, is that most of it is open to interpretation, put bluntly, put the same case in front of 2 or more tribunals, and the probability is that they would reach 2 different conclusions!

Gilbert is correct that the previous contractor has a legal obligation (since 2006) to supply you with his employee's liability information, however your statement that you did not recieve this information before you started the contract could very well mean that you did not comply with your own obligations.

Gilbert's assumption that the old contractor may be liable for not meeting their own requirements under the regulations, is incorrect, as the incoming contractor, you would be legally liable for any shortcomings on this point.

Jason's idea is only worth considering if you are very brave and have very deep pockets, the bigger firms get away with only because most people are scrared of them, however, this is not always the case, and they have been forced to pay out large sums under these rugulations, along with hefty fines!

ONCE AGAIN I STRESS THAT YOU SHOULD FIND A GOOD EMPLOYMENT LAW SPECIALIST WHO CAN MINIMISE THE DAMAGE TO FIGHT THIS CASE IF IT GOES TO A TRIBUNAL, IT CERTAINLY WONT BE CHEAP, AND YOU MAY HAVE TO RESIGN YOURSELF TO PAYING OUT.

Because you have not followed the rules, I would also expect little or no help from your insurance company, as a condition of your cover would be to take all reasonable steps to conform to the legislation.

Regards,

Rob

[Gilbert Sprous]

I would differ on me being wrong about the outgoing contractor assumption.  It is in TUPE regulation that the outgoing contractor has no choice but to provide you with all contract information in relation to the employee.  That would include that the outgoing contractor state that the employee is recieving 1 hour of paid lunch per day.  If the outgoing contractor did not forward this information they would be liable to a minimum award of 500 pounds per employee that transfered.

If you check again I did state that it  has been a year now and it would be hard to justify but if you mention that they could be liable to the 500 pound judgement they may send a copy of the original contract.  I would seriously doubt that there would be an award at this point but it, if mentioned, could be enough to get a copy of the old contract.

As far as a HR team not giving legal indemnity for their advice, I would say they have no choice.  That is why you hire them.  The approach being currently taken would land him in a hot seat but if Jonny talks to an HR specialist who will tell him the correct path and possible risks and outcomes they will idemnify him.  Sometimes you need to back up, regroup and replan, and start another attack form a different front.


Gilbert

[Pristine Clean]

Just a few notes - Take note of the bold detail!

Also I am with Rob on this. Not that we are arguing Gilbert. But Jonny has a legal obligation to check all details and request and prove that they has requested all relevent paper work including employment contracts. Otherwise how will Jonny know what the staff T&Cs are, each employee could have a different set of T&C's. And at present they have failed to do so.

The other contractor does have to produce the documentation in 14 days on the grounds it has been requested. Only then will they face the £500 penalty if they fail to do so.


Just to clarify, a funamental change has / or is going to take place a loss of 5 hours per week due to take over!

And its not that we are not positive Jonny. We are just truthful.

Transferred employees who find that there has been a fundamental change for the worse in their terms and conditions of employment as a result of the transfer generally have the right to terminate their contract and claim unfair dismissal before an employment tribunal, on the grounds that actions of the employer have forced them to resign.


Employer’s position in a transferUnder the Regulations, when an undertaking is transferred the position of the previous employer and the new employer is as follows:
 The new employer takes over the contracts of employment of all employees who were employed in the undertaking immediately before the transfer, or who would have been so employed if they had not been unfairly dismissed for a reason connected with the transfer. An employer cannot just pick and choose which employees to take on.

 The new employer takes over all rights and obligations arising from those contracts of employment, except criminal liabilities and rights and obligations relating to provisions about benefits for old age, invalidity or survivors in employees’ occupational pension schemes.

 The new employer takes over any collective agreements made on behalf of the employees and in force immediately before the transfer

 Neither the new employer nor the previous one may fairly dismiss an employee because of the transfer or a reason connected with it, unless the reason for the dismissal is an economic, technical or organisational reason entailing changes in the workforce. If there is no such reason, the dismissal will be unfair. If there is such a reason, and it is the cause or main cause of the dismissal, the dismissal will be fair provided an employment tribunal decides that the employer acted reasonably in the circumstances in treating that reason as sufficient to justify dismissal. If, in this case, there is a redundancy situation, the usual redundancy procedures will apply.

 The new employer may not unless the contract of employment so provides unilaterally worsen the terms and conditions of employment of any transferred employee.

 The previous and new employers must inform and consult representatives of the employees.
Employees’ position in a transferWhen an undertaking is transferred the position of the employees of the previous or new employers is as follows:

 An employee claiming to have been unfairly dismissed because of a transfer has the right to complain to an employment tribunal.

 Transferred employees who find that there has been a fundamental change for the worse in their terms and conditions of employment as a result of the transfer generally have the right to terminate their contract and claim unfair dismissal before an employment tribunal, on the grounds that actions of the employer have forced them to resign. Employees may not make this type of claim solely on the grounds that the identity of their employer has changed unless the circumstances of an individual case change and that change is significant and to the employee’s detriment.

In both the above cases dismissal because of a relevant transfer will be unfair unless an employment tribunal decides that an economic, technical or organisational reason entailing changes in the workforce was the main cause of the dismissal and that the employer acted reasonably in the circumstances in treating that reason as sufficient to justify dismissal. Even if the dismissal is considered fair, employees may still be entitled to a redundancy payment.

Employees employed in the undertaking immediately before the transfer (or who would have been so employed had they not been unfairly dismissed) for a reason connected with the transfer automatically become employees of the new employer, unless they inform either the new or the previous employer that they object to being transferred. In this case the contract of employment with the previous employer is terminated by the transfer of undertaking but the employee is not dismissed. The previous employer may re-engage the employee.

An employee’s period of continuous employment is not broken by a transfer, and, for the purposes of calculating entitlement to statutory employment rights, the date on which the period of continuous employment started is the date on which the employee started work with the old employer. This should be stated in the employee’s written statement of terms and conditions; if it is not, or if there is a dispute over the date on which the period of continuous employment started, the matter can be referred to an employment tribunal

Transferred employees retain all the rights and obligations existing under their contracts of employment with the previous employer and these are transferred to the new employer, with the exception that the previous employer’s rights and obligations relating to benefits for old age, invalidity or survivors under any employees’ occupational pension schemes are not transferred. If the new employer does not provide comparable overall terms and conditions, including pension arrangements, an employee may have a claim for unfair dismissal.
Occupational pension rights earned up to the time of the transfer are protected by social security legislation and pension trust arrangements.


Dave

[Robert Parry]

Dave there is no way I would have typed all that!

As you point out, I dont think anyone is trying to be arguementive here, the whole purpose of the forum is to help and support each other, especially in difficult times.

The only advice worth following is to get LEGAL ADVICE from a specialist as soon as possible.

IN all TUPE transfers, it is normal practice for the outgoing contractor to supply the incoming service provider with full details of the employee/s, it is also normal practice for the outgoing contractor to indemnify the incoming contractor against any liabilities arising from their previous employer, because once the transfer takes place, the new employer becomes liable.

I also dont understand why this happened in the first place, Jonny stated that he doesnt feel that he should pay his chap for his lunch breaks, Jonny doesnt pay him, his client does, Jonny actually increases his own profits on this contract! Of course, by changing his guy's hours, he could obtain even more profit by cutting out the extra hours, or even pass on this saving to his client!

Dave also raises a very serious point regarding a future claim for unfair/constructive dismissal, something wlse to consider!

My last point concerns Gilberts believe that by paying an external specialist, that they will imdemnify Jonny against any award made against him, please check this vital point out carefully, in the terms and conditions of all these companies they will promise to imdemnify you against any award made against you, providing that you follow their advice BEFORE you do anything, in this case, that would not be true! Even if Jonny paid the full £4000 sign up fee, the average award is over £5000, the numbers do not stack up.

Regards,

Rob

[Gilbert Sprous]

I think you misunderstand the point I am trying to put out.  I have agreed that the process Jonny is going down is very risky.  I would not try it this way.  My point is to back up, regroup, and come at it from a different angle.  From my understanding Jonny has not completed this process and it should be easy for him to back off from his current stategy of reducing the hours.  My point is that there are several angle to come back to this.  I would suggest that he drop the current method and adopt a new method of action.  The HR advisors will be able to tell him the correct course of action to achieve the desired results.  See where I am going with this?  There are a few questions that I would have.  1.  Did the outgoing contractors meet their obligations to provide all necessary information? 2.  Did I do everything I was supposed to do to ensure that I had the information.  3.  Is it too late to request the informtation I should of had in the first place.  4.  At what point does a change like this become seperated from TUPE legislation (at some point it will or we would never be able to change a transferred contract and sooner or later in the future we would all be working on other peoples contracts).  5.  Is there other legislation that could help me go forward. 

I would agree it is not an arguement, it is a difference of opinion, and if we are able to discuss and debate situations like these, we all benefit.  I believe that if you dont question the status quo (ie.. TUPE requires that you suck it up and take it) then you will never find a way forward.  When I took over the council contract at the begininning it looked like I would take a big hit on my margins because of TUPE and the unions always saying that they would take me to tribunal.  But I questioned almost everything and sometimes very strongly.  I did not get my way on all of it but I did come out with a very profitable contract in the end.

To summarise aI dont think Jonny will get away with what he stated and coould risk a judgement but I also dont think that he will have to necessarily continue to pay the hour lunch break of he gets some HR advise on how to take it forward properly.  And if he follows that avice he should be idemnified.  Not idemnified for his current course of action but on the correct and legal course of action to get the end result desired.

Gilbert