ADJ-00016182

Complainant

Respondent

Anonymised Parties

A Healthcare worker

A Staffing Agency

Representatives

Rachel Hartery SIPTU

Brian Dolan Peninsula Business Services

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00016905-002

17/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00016905-003

17/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00016905-006

17/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00016905-008

17/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00016905-009

17/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00016905-010

17/01/2018

The Complainant submitted claims stating that a Transfer of Undertaking had taken place when her employment was terminated by her employer and the Respondent took over a contract to supply staff to a Third party and that her terms and conditions did not transfer as a result, there was a lack of information and consultation and she was dismissal as a result of an alleged transfer of Undertaking between two companies and that her Representative was not consulted on the transfer. In the claim forms the Transferee is sometimes referred to as the Transferor and this issue is dealt with in the decision.

The Complainant was employed with Company A (Not the Respondent) as Health Care Assistant.

The Complainants employment was terminated without notice in and around Sept 1st 2017 as a result of Company A no longer being an eligible supplier of staff to a Third Party Hospital.

The Complainants rights to information consultation to representation were infringed by the Respondent.

The Complainant also contends that an economic activity existed and transferred to the Respondent and a Transfer of undertaking in the fullest meaning of the legislation occurred and the Complainant should have transferred to the Respondent.

The Complainant stated that she was not consulted on the transfer, her Representative was not able to represent her and she was dismissed as a result of the Transfer of Undertaking.

The Respondent denies that any transfer of an economic activity took place and refutes all the claims and that it was only one of a number of suppliers who became engaged to supply a service to a Third Party that previously was supplied by the Complainants employer.

Any staff which the Respondent engaged from the previous employer were engaged through a hiring and training process and no automatic transfer took place.

It is the Respondents position that no transfer within the meaning of the Regulations has occurred.

The Respondent was not contacted by the previous supplier or the Complainants Representative in advance of any alleged transfer.

On a number of occasions the EAT has found that no transfer has occurred in light of the “second labour”   limb of the Suzen test.

The Complainants employment was terminated by the previous employer.

While the Respondents case is that no transfer has taken place any transfer would have been between five separate entities of which the Respondent is one.

The Respondent made significant legal submissions that the entity was not an “economic entity” within the meaning of the Act and that no assets or goodwill passed to the Respondent.

It would have been in the Respondents business interest, as an employment contract agency, that all staff of the previous supplier transferred to it but this did not happen as many staff where employed by the Company that the previous supplier was contracting to. 

There are a number of issues in this case that need to be dealt with in a particular order to establish the decisions to be made by the Adjudicator in relation to each claim.

Firstly, was the activity of the Transferor to the Respondent an economic entity and if so was there a Transfer of Undertaking between the Transferor and the Respondent?

If the answer to both of the above is yes then the claims by the Complainant under the lack of information, Consultation and dismissal require decisions.

If the answer to either of the above questions is no, then as no Transfer of Undertaking having taken place all claims are not well founded.

It is well established that each case regarding a Transfer of Undertaking must be viewed on the particular facts of the instant case with cognisance of the Directive and legal precedents. I find based on the evidence that this was an economic entity was an economic entity and the core issue then to be resolved is whether a transfer of undertaking from the Company A to the Respondent took place.

The aim of the Regulations is to safeguards the rights and entitlement of employees arising from the employment relationship when the business or part of the business transfers from one employer to another. The Court of Justice has consistently stated that the decisive criteria for establishing the existence of a transfer is whether the entity in question retains its identity as indicated by the fact that its operation is actually continued or resumed.

In this instant case the Company A (the Complainants employer) was providing staff to a third party for the provision of Health Care services. Company A , who is an extremely large national employer in another sector, does not engage in this activity of providing Health Care staff with any other third party and was doing the Third Party “a favour” by providing the service. When the Third Party decided nationally to limit the provision of Heath Care services to a particular number of Agencies in defined geographical regions Company A   contract with the Third Party ceased by operation of it non being a selected Supplier.

The Third Party (Company B) in its memo nationally, dated September 4th 2017,   to all management staff involved in the provision of Health Care staff did not select one particular Agency in the Complainants region for the supply of Health Care staff. Instead it states “This is a Multi Suppler Agency Framework-There will be one Principal Supplier for each Category in each Lot as well as up to four second tier suppliers for each category in each Lot”. In this case four named companies were designated Second Tier suppliers.

The Respondent was selected as the Principal Supplier and were it not able to supply staff any of four other companies could provide staff. It follows then that the economic entity of the Complainants employer did not transfer intact to the Respondent This position is also supported by the fact that many staff of the Company A were directly employed by the Third Party (Company B) on the date of the contract cessation, some were employed by the Respondent, at various times, through a normal recruitment and hiring process and some went elsewhere.

There is clear evidence that the unit in which the Complainant worked for the prior employer was an “economic entity” in its own separate right to all the other Employers activities. This is further evidenced by the fact that the prior employer did not give any consideration to transferring the Complainant, or any other staff involved in the economic entity, into its core operations at the Third Party or any of its other operations.

In this case the prior employer held no discussions with the Respondent regarding any transfer of assets , staff or “economic entity”. No assets or good will transferred. Security of tenure or provision of the contract was not guaranteed as the Respondent was only one of five potential suppliers to Company B. Employees “dispersed” in a number of directions and those who were subsequently employed by the Respondent had to apply for their job, be interviewed and pass any training required for the posts. Some staff were hired directly by Company B.

In correspondence from the Complainants previous employer to the Complainants Union Representative on September 8th, 2017 it stated, “I had discussions with the Deputy General Manager (of the Third Party) last week who understood the situation and has agreed to work with us and the agency to ensure all staff are provided positions if they so wish with one of the new providers”. It is clear from this communication that the previous employer was of the view that no Transfer of Undertaking was taking place to one particular Supplier and that multiple Suppliers were involved in the new contractual relationship .

Given that in the unique instance of this case, on the basis of the above analysis and using the Labour Court decision in TUD1713 as guidance on the matter I find that no transfer of undertaking within the meaning of the Regulations did occur in September 2017 and the Complainant had no entitlement to transfer from her previous employer to the Respondent and claim reference number CA-00016905-002 is not well founded.

As a result of the above decision the requirement for information, consultation, effective dismissal by the Respondent and representation rights under the Directive do not apply and I find that claim reference numbers CA-00016905-003, CA-00016905-0006, CA-00016905-008, CA-00016905-009 and CA-00016905-010 are not well founded.

While the issue of the Respondent being described as the Transferor in the claim form when in fact it was the alleged Transferee is registered mute by the decisions which find no Transfer of Undertaking has taken place, the mistaken identification of the Respondent in the claim form as the Transferor would not have rendered the claim under the Transfer of Undertaking in its entirety null and void as the correct parties were identified as the Respondents in the claim form and the claim presented at the Hearing had the parties identified in the correct order.

Transfer of Undertaking