TUD186

Complainant’s case

The Complainant was employed by the Respondent as a Pest Control Technician since July 2003. On the 18/01/2017 the Complainant received an email asking him to come to the office of the Respondent at 1.30pm that day. When the Complainant arrived at the office he was met by the managing director who informed him that his employment had been taken over by a named company. He was advised that if he objected he would be out of a job. The Complainant was handed a letter dated 18^thJanuary 2017 which informed him of the transfer and stated“….has today made a strategic divestment of its Canon Pest Control interests..”In effect this meant the Complainant was only told of the transfer after it had occurred. This is contrary to the requirement of section 8 of the Regulations.

Respondent’s case

In late 2016 the Respondent began discussions with the Transferee about selling the Pest Control business division of their company to the Transferee. The Transferee is a publicly listed company so the negotiations were carried out in the utmost secret and confidentiality. After months of discussion the Transferee acquired the business on the 17^thJanuary 2017. On the 18^thof January which was the earliest available opportunity the Respondent invited the effected employees to a meeting to discuss the situation. It is the Respondents position that it was not reasonably practical to consult with the employees affected 30 days in advance of the transfer but they did engage with them as soon as was practical after the transfer. Nothing changed for the Claimant and he suffered no detriment. The Respondent felt because of the confidential nature of the discussions they had no option but to waive the 30 day consultation.

The applicable law

Section 8(1) The transferor and transferee concerned in a transfer shall inform their respective employees’ representatives affected by the transfer of -

(a) the date or proposed date of the transfer;

(b) the reasons for the transfer;

(c) the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them

And

(d) any measures envisaged in relation to the employees.

(2) The transferor shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out.

(3) The transferee shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the employees are directly affected by the transfer as regards their conditions of work and employment.

(4) Where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement.

(5) Where there are no employees' representatives in the undertaking or business of the transferor or, as the case may be, in the undertaking or business of the transferee, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employees may choose from among their number a person or persons to represent them (including by means of an election) for the purposes of this Regulation.

(6) Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following:

(a) he date or proposed date of the transfer;

(b) the reasons for the transfer;

` (c) the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee;

and

(d) any measures envisaged in relation to the employees.

(7) The obligations specified in this Regulation shall apply irrespective of whether the decision resulting in the transfer is taken by the employer or an undertaking controlling the employer and the fact that the information concerned was not provided to the employer by the undertaking controlling the employer shall not release the employer from those obligations.

Section 10 (1)A complaint that an employer has contravened any of these Regulations (other than Regulations 4(4)(a) and 13) in relation to an employee may be presented to a rights commissioner by:

(a) the employee, or

(b) a trade union, staff association or excepted body on behalf and with the consent of the employee.

(2) A complaint under paragraph (1) shall be presented by giving notice of it in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.

(3) A copy of a notice under paragraph (2) shall be given to the other party or parties concerned, by the rights commissioner concerned.

(4) Where a complaint is presented to a rights commissioner under paragraph (1), the rights commissioner shall -

(a) give the parties an opportunity to be heard and to present any evidence relevant to the complaint;

(b) give a decision in writing in relation to the complaint; and

(c) communicate the decision to the parties.

(5) A decision of a rights commissioner under paragraph (4) shall do one or more of the following:

(a) declare that the complaint is or, as the case may be, is not well founded;

• (b) require the employer to comply with these Regulations and, for that purpose, to take a specified course of action; or

  (c) require the employer to pay to the employee compensation of such amount (if any) as in the opinion of the rights commissioner, is just and equitable in the circumstances, but -

(ii) in the case of a contravention of any other Regulation, not exceeding 2 years remuneration,

in respect of the employee's employment calculated in accordance with Regulations made under section 17 of the Unfair Dismissals Act 1977 ,

Discussion and Decision.

The Regulations clearly sets out the requirement to consult in advance of the transfer taking place. While the Regulation does allow for some discretion around the 30 days it clearly requires that engagement takes place “in good time before the transfer is carried out” There is no provision in the legislation to waive in its entirety the obligation to consult in advance of the transfer. It is clear from the submissions of both parties and the oral submissions on the day of the hearing that the Respondent did not comply with the requirements set out in Regulation 8. Therefore, the complaint is well founded. The maximum amount of compensation which can be awarded for a breach of Regulation 8 is capped at 4 weeks’ pay. Having regard to the fact that the Respondent made no effort to comply with its obligations to the Complaint under Regulation 8, the Court directs that it pay the equivalent of 4 weeks’ remuneration in compensation (i.e. €2869.58) to the Complainant. This is compensation for a breach of an entitlement and is, therefore, exempt from income tax.

The decision of the Adjudication Officer is varied accordingly.

Signed on behalf of the Labour Court



Louise O'Donnell
23 March 2018.______________________
CCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.