TUD1810

This matter came before the Court by way of an appeal brought by Euro Car Parks (Ireland) Limited (‘the Appellant’) against a decision of an Adjudication Officer (ADJ-00006180, dated 21 September 2017). That decision – the entirety of which the Appellant appeals against – encompassed a number of complaints (CA-00008259-002, CA-00008259-003 and CA-00008259-006) under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (‘the Regulations’). The Adjudication Officer found that, as no transfer within the meaning of the Regulations had occurred when the Appellant’s contract to run the Paul Quay Car Park in Wexford in which Mr Kelly (‘the Complainant’) had been employed ceased on 14 November 2016, the complaints under the Regulations were not well-founded.

The appeal was listed for hearing in Wexford on 26 April 2018. The Complainant, although notified by the Court through his Solicitors of the date and venue of the appeal hearing, did not attend and was not represented at the hearing of the within appeal. His Solicitors informed the Court by letter dated 25 April 2018 of his intention not to contest the appeal. The Court received a detailed submission on the facts and the legal issues arising from the Appellant, the salient points of which are set out below.

The Factual Matrix

The Complainant was employed as a Car Park Officer from the 1 October 2007 to 14 November 2016 at the Paul Quay Car Park in Wexford town. The Paul Quay Car Park is an independent car park located approximately 100 yards from the Talbot Hotel in Wexford town. The car park is utilised by members of the public who wish to park in a secure location in Wexford, as well as patrons of the Talbot Hotel.

On 29 July 2013, the Appellant was engaged by Grant Thornton, Receivers to Streamline Properties (the then owners of the Paul Quay complex) to operate, run, maintain and manage the car parking facilities at the Paul Quay Car Park, in Wexford. That arrangement was formalised by a written contract dated 1 January 2015.

On 14 January 2016, the interest of Streamline Properties (In Receivership) in the Paul Quay Car Park was sold to Oyster Lane Limited, a limited liability company whose primary business activity is the management, operation, running and maintenance of car parking facilities. Also on 14 January 2016, the Contract for Services dated 1 January 2015 between Streamline Properties and the Appellant was transferred to Oyster Lane Limited.

By email of 14 October 2016, Oyster Lane Limited served notice to terminate the Appellant’s contract to operate the Paul Quay Car Park with effect from 14 November 2016. Oyster Lane Limited informed the Appellant that it was ‘insourcing’ the running, management and operations of Paul Quay Car Park directly. On 15 October 2016, the Appellant advised the Claimant verbally that Oyster Lane Limited would take over the management of the Paul Quay car park directly. On 27 October 2017, Mr David Cullen for the Appellant wrote to the Claimant, informing him that the Regulations would apply to the insourcing of the management of Paul Quay Car Park and that he was entitled to transfer to the employment of Oyster Lane Limited with effect from 14November 2016 under the same terms and conditions of employment as he had hitherto enjoyed whilst in the Appellant’s employment.

Appellant’s Legal Submissions

The principal issue that falls to be determined by the Court in the within appeal is whether or not a transfer within the meaning of the Regulations occurred on 14November 2016 on which date Oyster Lane Limited assumed the management and running of the Paul Quay Car Park, such that the Complainant was entitled to have his employment transferred from the Appellant to Oyster Lane Limited from that date on no less favourable terms and conditions.

The Appellant submits that a transfer of an economic entity which retained its identity occurred as between the Appellant and Oyster Lane Limited on 14November 2016. Paul Quay Car Park had been operating as an economic entity since the appointment of the Appellant by Grant Thornton in July 2013. As an economic entity, according to the Appellant, it had built up good will which transferred to Oyster Lane Limited on 14 January 2016. The transfer of ownership of the Car Park to Oyster Lane Limited on 14 January 2016 did not alter the identity of the Car Park – the Car Park continued to operate on the same terms as prior to 14 January 2016, which were then formalised on 26 January 2016.

The Appellant referred the Court to a number of well-known authorities in support of its submission:Spijkers(1986) 2 CMLR 296;CLECE SA v Martin Valor[2011] 2 CMLR 30;Merckx v Ford Motors Co Belgium SA(C-171/94 & C-172/94) [1996] E.C.R. I 1253;Francisco Hernández Vidal SA v Perez(C-127/96, C-229/96 & C-74/97) [1998] E.C.R. I-8179;Schmidt v Spar- und Leihkasse der Fruheren Amter Bordesholm, Keil und Cronshagen(C392/92) [1994] E.C.R. I-1311;ECM (Vehicle Delivery Services) Ltd v Cox[1999] 4 All E.R. 669;Lightways (Contractors) Ltd v. Associated Holdings Limited[2000] IRLR 247

Discussion and Decision

The aim of Directive 2001/23 (and by extension, that of the Regulations) is to safeguard the rights and entitlements of employees arising from their employment relationship when the business or part of the business in which they are employed transfers from one employer to another employer. The Court of Justice has consistently stated that the decisive criterion for establishing the existence of a transfer within the meaning of the Directive is whether the entity in question retains is identity, as indicated by the fact that its operation is actually continued or resumed. (See, inter alia, Case 24/85Spijkers, paragraphs 11 and 12; Case C-13/95Suzen, paragraph 10; and Case 340/01Abler and Others,paragraph 29). The Paul Quay Car Park was run, operated, maintained and managed by the Appellant with effect from 29 July 2013. The Complainant (amongst others) was employed by the Appellant to assist with the operation of its contract with the Receiver Grant Thornton and, subsequently, with Oyster Lane Limited to manage the Paul Quay Car Park.

The Appellant submits that the business carried on at the carpark up until the date its contract to operate that business ceased is – in all material respects – identical to the business now carrried on there by Oyster Lane Limited and that therefore, by operation law – having regard to the Directive, the Regulations and the case law of the Court of Justice referred to above – a transfer of undertakings occurred as between the Appellant and Oyster Lane Limited such that the Complainant was entitled to transfer his employment to the latter company with effect from 14 November 2016.

In order to determine whether a transfer of undertaking within the meaning of the Regulations occurred on 14 November 2016, this Court has firstly to determine whether the Appellant’s operation of the Paul Quay Car Park can be characterised as a stable economic entity. If the Court answers that in the affirmative, it then has to consider whether or not the essential characteristics of that economic entity were maintained following the insourcing of the management of the car park by Oyster Lane Limited.

The Court of Justice has developed a considerable body of jurisprudence in relation to transfer of undertakings ever since it was first called upon to interpret the provisions of the original so-called ‘Acquired Rights Directive’ (Directive 77/187). Nevertheless, it is widely accepted that the Court’s judgment in Case 24/85Spijkers v Gebroeders Benedik Abbatoir CVremains a cornerstone of that jurisprudence. The Court stated the following at paragraphs 12 to 15 inSpijkers:

• “12 Consequently, a transfer of an undertaking, business or part of a business does not occur merely because its assets are disposed of. Instead it is necessary to consider, in a case such as the present, whether the business was disposed of as a going concern, as would be indicated, inter alia, by the fact that its operation was actually continued or resumed by the new employer, with the same or similar activities.

  13 In order to determine whether those conditions are met, it is necessary to consider all the facts characterizing the transaction in question, including the type of undertaking or business, whether or not the business' s tangible assets, such as buildings and movable property, are transferred, the value of its intangible assets at the time of the transfer, whether or not the majority of its employees are taken over by the new employer, whether or not its customers are transferred and the degree of similarity between the activities carried on before and after the transfer and the period, if any, for which those activities were suspended. It should be noted, however, that all those circumstances are merely single factors in the overall assessment which must be made and cannot therefore be considered in isolation.

  14 It is for the national court to make the necessary factual appraisal, in the light of the criteria for interpretation set out above, in order to establish whether or not there is a transfer in the sense indicated above.

  15 Consequently, in reply to the questions submitted it must be held that article 1(1) of Directive No 77/187 of 14 February 1977 must be interpreted as meaning that the expression ' transfer of an undertaking, business or part of a business to another employer' envisages the case in which the business in question retains its identity. In order to establish whether or not such a transfer has taken place in a case such as that before the national court, it is necessary to consider whether, having regard to all the facts characterizing the transaction, the business was disposed of as a going concern, as would be indicated inter alia by the fact that its operation was actually continued or resumed by the new employer, with the same or similar activities.”

In Case C-29/91,Dr. Sophie Redmond Stichting v Hendrikus Bartol and Others, the ECJ held that

• “31 … Article 1(1) of Directive 77/187 must … be interpreted as meaning that that expression ["transfer of an undertaking, business or part of a business"] refers to the case in which the entity in question has retained its identity. In order to ascertain whether or not there has been such a transfer in a case such as that which is the subject of the main proceedings, it is necessary to determine, having regard to all the factual circumstances characterizing the operation in question, whether the functions performed are in fact carried out or resumed by the new legal person with the same or similar activities, it being understood that activities of a special nature which constitute independent functions may, where appropriate, be equated with a business or part of a business within the meaning of the directive.”

InSánchez Hidalgo v Asociaci�n de Servicios Aser(C-173/96 & C-247/96) [1998] E.C.R. I-8237, the ECJ held:

• “As pointed out in paragraph 29 of this judgment, the national court, in assessing the facts characterising the transaction in question, must take into account among other things the type of undertaking or business concerned. It follows that the degree of importance to be attached to each criterion for determining whether or not there has been a transfer within the meaning of the Directive will necessarily vary according to the activity carried on, or indeed the production or operating methods employed in the relevant undertaking, business or part of a business.”

Conclusion

The Court, for the reasons outlined above, and having regard to the extensive body of caselaw to which its attention was directed, finds that a transfer of undertakings within the meaning of the Regulations occurred as between the Appellant and Oyster Lane Limited on 14 November 2016 such that the Complainant was entitled to transfer his employment to the latter company with effect from that date. The decision of the Adjudication Officer is, therefore, set aside.

The Court so determines.

Signed on behalf of the Labour Court




CR______________________
18 May, 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.