ADJ-00002371

Complainant

Respondent

Anonymised Parties

A Shop Manager

A Florist Shop

Representatives

McInerney Solicitors

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-00002882-002

26/02/2016

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-00002882-005

26/02/2016

The complainant was employed since 24th June 2006 by Company X (not the respondent) until the business transferred to the respondent in 2008 and then transferred to Company Z on 2nd February 2016.

The complainant detailed that complaint CA-00002882-005 was withdrawn. The only complaint outstanding in relation to this respondent was CA-00002882-002 which related to information and consultation.

There was some confusion around the reference numbers of the complainant’s complaints as she has taken some claims against Company Z. The complainant detailed that the only complaint outstanding in relation to this respondent was CA-00002882-002 which related to information and consultation.

The complainant was the only employee of the respondent when on 2nd February 2016 the business transferred under TUPE regulations to Company Z.

The complainant details that the respondent failed to provide consultation and information as required under the legislation and that the respondent had only informed the complainant 14 days before the TUPE 

The respondent detailed that she was under pressure to proceed with the transfer quickly, in time for St Valentine’s day which is a busy day for florists and that 14 days’ notice was given to the complainant.

The complaint details that the respondent failed in their obligation to consult and inform the complainant of the transfer.

Regulation 8 of the 2003 Regulations deals, in parts, with provision of information and consultation to employees before the transfer, in relation to the transfer, by the transferor (the respondent).

This should be looked at in conjunction with Regulation 4 which provides:

·         Rights and obligations

(1) The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.

(2) Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.

(3) Subject to paragraph (4), this Regulation shall not apply in relation to employees' rights to old-age, invalidity or survivors' benefits under supplementary company or inter-company pension schemes that do not fall within the Social Welfare Acts.

(4)(a) The interests of employees and of persons no longer employed in the transferor's business at the time of the transfer in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors' benefits, under a supplementary company pension scheme that is an occupational pension scheme within the meaning of the Pensions Acts 1990 to 2012 are protected under those Acts.

(b) The transferee shall ensure that the interests of employees and of persons no longer employed in the transferor's business at the time of the transfer in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors' benefits, under a supplementary company pension scheme, other than a supplementary pension scheme that is an occupational pension scheme within the meaning of the Pensions Acts 1990 to 2012, are protected.”

Regulation 8 provides:

8. Information and consultation

·         (1) The transferor and transferee concerned in a transfer shall inform their respective employees' representatives affected by the transfer of—

o    (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.

(1A) The transferor and transferee concerned shall include, with the information being provided under paragraph (1), information as respects—

o    (a) the number of agency workers temporarily engaged in the undertaking concerned, (b) those parts of the undertaking in which those agency workers are, for the time being, working, and (c) the type of work that those agency workers are engaged to do.

(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:

o    (a) the 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.

Directive 2001/23/EC (‘the Directive’), transposed into domestic law by the Regulations, provides in the first paragraph of Article 3(1) that “The transferor’s rights and obligations arising from a contact of employment or from an employment relationship existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee”.

The second paragraph of Article 3(1) of the Directive includes an optional provision which permits a Member State to derogate from the strict terms of the first paragraph of Article 3(1) as follows:

·         “Member States may provide that, after the date of transfer, the transferor and the transferee shall be jointly and severally liable in respect of obligations which arose before the date of transfer from a contract of employment or an employment relationship existing on the date of the transfer.”

The Irish State did not transpose into domestic legislation this optional provision in relation to joint and several liability. Following a transfer of undertakings within the meaning of the Regulations, the liability for the “transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer” rest with the transferee.

This issue was dealt with in significant detail in TUD183 (J Donoghue Beverages LimitedV Elizabeth Collins) by the Labour Court where they set out that owing to the decision by Ireland not to transpose the optional provision in Article 3 (1) of Directive 2001/23/EC to make a transferor and transferee jointly and severally liable after the transfer that Regulation 8 “thereby implies a term into the Complainant’s contract of employment that entitles her to a period of information and consultation through her chosen/elected representatives prior to the occurrence of a transfer within the meaning of the Regulations; Regulation 4(1) provides that any remedy for the failure of her employer as transferor to fulfil its obligations under Regulation 8 can only be sought as against the Transferee”.

As the Regulation provides that failure to fulfil its obligations can only be sought against the transferee, I do not uphold the complaint and I do not find the complaint to be well founded.

This complaint was withdrawn.

CA-00002882-002

I do not find the complaint well founded and I dismiss the complaint.

 CA-00002882-005

This complaint was withdrawn.

TUPE obligations, information and consultation