Complainant

Respondent

Anonymised Parties

A Security Officer

A Security Company

Representatives

Wendy Doyle, Tully Rinckey Solicitors

Alan Flanagan BL

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-00017851-001

09/03/2018

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-00017851-003

09/03/2018

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-00017851-004

09/03/2018

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-00017851-005

09/03/2018

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-00017851-006

09/03/2018

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-00017851-008

09/03/2018

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-00017851-010

09/03/2018

The complainant was employed by Company A, a company providing security services at concerts, festivals and exhibitions. Company A also had a contract to provide “static” security at a venue in Dublin.   I will refer to this as “the Dublin venue.” In December 2017, Company A lost the contract for security at the Dublin venue and it was awarded to Company B, the respondent in this complaint.

Four security guards worked at the Dublin venue; however, Company A claimed that just one of these was assigned there on a permanent basis and the others were called in to work when concerts or exhibitions were taking place.

On December 1st 2017, the complainant received a letter from his employer letting him know that the contract with the Dublin venue was ending on December 11th.   In the letter, the managing director stated;

“Under TUPE legislation (2003) you are entitled to seek to retain your current position should you wish to do so. We will discuss future employment with you towards the end of next week.”

On December 4th 2017, one employee transferred to the respondent’s company. The complainant and his brother and a person who had been out sick for most of 2017 did not transfer.

On December 15th, the payroll manager of Company A wrote to the operations director of Company B with details of the outstanding annual leave of the four employees who worked at the Dublin venue. In her mail, the payroll manager stated,

“I am sure you know already that under T.U.P.E. you are required to pay outstanding holidays to the four men.”

On December 19th 2017, the complainant sent a mail to the respondent saying that he was advised by his employer that his “employment is being transferred to your company…” He looked for clarification and asked to be contacted.

On January 18th 2018, the operations director of the respondent company met the complainant and informed him that the information he had from Company A was that the complainant was not dedicated to the Dublin venue and that he worked across multiple sites. He said that he understood that the complainant only worked at the Dublin venue to cover the sick leave of the man who was absent. The operations director offered the complainant work across other sites, but the complainant refused, claiming he was entitled to a guarantee of 48 hours per week at the Dublin venue.

On February 15th 2018, the complainant’s solicitor wrote to the respondent. In her letter, Ms Doyle said that the complainant was seeking confirmation that he will be entitled to return to work with the respondent on the same basis that he worked with Company A, for 48 hours per week at the Dublin venue and that he would be paid his wages since the date of the transfer. The respondent did not reply Ms Doyle’s letter and on March 9th 2018, this complaint was submitted to the WRC.

The complainant’s case is that he has a contract dated April 17th 2017 that states that he has a guarantee of 48 hours work per week at an hourly rate of €11.25.   His contract also specifies that he works only at the Dublin venue. The complainant presented a copy of his contract in evidence at the hearing. Under the heading, “Place of Work,” the contract states:

“You will be required to work only at (name of the Dublin venue).”

Under the heading, “Hours of Work,” the contract states:

“48 hours guaranteed at 11.25 euro per hour, everything else at time and a half.”

In his evidence, the complainant said that from August 2016, he had “always” worked at the Dublin venue. His solicitor said that the complainant signed worksheets every week indicating where he worked for that week and they will show that, for most of his time, he worked at the Dublin venue. As the contract to provide security services at the Dublin venue was lost by his employer in December 2017, the complainant claims that he is entitled to transfer to the respondent company and to continue to work on that site. In his evidence, the complainant said that this was his understanding when he received the letter from the managing director of Company A on December 1st 2017. On December 4th, just a week before the transfer became effective, the complainant said that two employees from the respondent’s company attended at the Dublin venue to train on the site. He said that his last day working for Company A was December 8th 2017.

Some acknowledgement of the application of the Transfer Regulations is evident from an e mail from Company A’s payroll manager to the operations director of Company B on December 15th 2017:

“Hi (name of operations director)

“Please find attached (name of complainant’s brother) TUPE information as directed under TUPE agreement. I am sure you already know that under TUPE you are required to pay outstanding holidays due to the four men.

“I will send (name of employee who was out sick) holiday form today and (name of complainant’s) information. All (name of employee who transferred) I will send on Monday.”

The operations director phoned the complainant’s brother on January 12th 2018 and they eventually had a meeting on January 18th. The complainant said that he was offered a zero hours contract.   He was not willing to agree to this, as he claims that he had a guarantee of 48 hours per week with Company A.

Legislation

In her submission at the hearing of this complaint, Ms Doyle said that the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 apply where there is a change in the provider of a service, known as a “second generation transfer.” This is the circumstance that applies here, where the provision of security services at a venue changes from one provider to a new provider.

Ms Doyle referred to the importance of Regulation 4, which confirms the objective of the Regulations:

“(1) Company A’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 Company B.

(2) Following a transfer, Company B shall continue to observe the terms and condition agreed in any collective agreement on the same terms applicable to Company A under that agreement until the date of termination or expiry of the collective agreement or the entry into force of another collective agreement.”

By reason of this regulation, Ms Doyle argued that it is clear that an employee is entitled to transfer from their old employer to their new employer where a business transfer occurs. While the Regulations are silent on the transfer of a contract, the Court of Justice of the European Union (CJEU) and the Employment Appeals Tribunal (EAT) have previously determined that the Regulations apply where there is a change in the provider of a service. This includes the changing of contractors or what has come to be known as “second generation transfers.”

Regulation 5(1) provides that the transfer of a business cannot be grounds for dismissal unless the economic, technical or organisational defence set out in Regulation 5(2) applies.

Regulation 5(3) provides that:

“(3) If a contract of employment is terminated because the transfer involves a substantial change in working conditions to the detriment of the employee concerned, the employer concerned shall be regarded as having been responsible for the termination of the contract of employment.”  

The complainant’s case is that he is entitled to consider himself as dismissed as he was not offered work at the Dublin venue on the basis of a guarantee of 48 hours per week.

Regulation 8 sets out the responsibilities of Company A and Company B to inform and consult with the employees’ representatives in relation to the transfer and sets out the specific details of the information to be provided including the reason and date of the proposed transfer, the implications of the transfer for the employees and any specific measures envisaged in relation to their employment.

Regulation 10 sets out the powers of an adjudicator is make awards of compensation where complaints are upheld.

Case Law

Ms Doyle referred to a considerable list of precedent cases which support her contention that the Regulations apply to the complainant in this case:

Moses Walsh and Pat Cotter v Demford Taverns limited and John Bowler, UD 436/97, 437/97, MN 712/97, 728/97

Ms Doyle submitted that this case demonstrates that there must be a fundamental change in the identity of the undertaking being transferred for the Regulations not to apply.

C-24/85, Spijkers v Gebroeders Benedik Abbatoir CV [1986] ECR1119.

This decision of the CJEU again demonstrates that the decisive criterion in the application of the Regulations apply is whether the business retains its identity. This is indicated where the operation continues or is resumed under the new contractor. THE CJEU found that assessment of the degree to which the business retained its identity after a transfer is based on the following:

The type of undertaking or business concerned;

Whether assets, tangible or intangible are transferred;

Whether employees are taken over;

Whether customers are transferred; and,

The degree if similarity between the activities carried on before and after the transfer.

Ms Doyle submitted that each case must be considered on its own merits and, if the business activity is continued, a transfer of an undertaking is likely to have taken place.

Bannon v Employment Appeals Tribunal and Drogheda Town Centre Limited [1992], ELR 203

Murphy and Corish v Broken Cross Limited

Marie Guidon v Hugh Farrington Ushers Island Petrol Station [1993], ELR 98

In her written submission, Ms Doyle said that in Ireland, it has been held that the transfer regulations apply to first generation transfers, as in Bannon above, second generation transfers such as Murphy and Corish and “contracting in” circumstances, such as those that applied in the Marie Guidon case.

McLellan v Cody, EAT 14/86

Cartwright v Norton, EAT 91/82

Noirris t/a Little Brickill Service Station v Bedwell, EAT 875/83

Ms Doyle referred to these cases as “tri-lateral transfers” or “second generation transfers” where the transfer is as a result of a decision of a customer to change contractors. In the cases she referred to here, the EAT found that a direct transfer took place when a business moved from an outgoing manager to an incoming manager.

C-13/95, Ayse Suzen v Zehnacker Gebaudereinigung GmbH Krankenhausservice [1997]

In this case, the CJEU considered the circumstances of Ms Suzen who was a cleaner in a school that changed the cleaning contract to another provider. The CJEU found that a transfer of undertakings did not apply in the case of Ms Suzen.   In relation to the complaint under consideration here, Ms Doyle said that the Court found that the Regulations apply where there are “significant tangible or intangible assets, or taking over by the new employer of a major part of the workforce, in terms of their number and skills, assigned by his predecessor to the performance of the contract.” (Quote from the findings in Suzen).

Submitting that this outcome must be treated with some degree of caution, Ms Doyle noted that it has been found that some employers have endeavoured to avoid the Regulations by deliberately not taking over assets and / or employees. She referred to the case of ECM (Vehicle Deliver Service v Cox [1999], All ER (d) 838 which introduced what is referred to as the “motive test” to consider the actions of the parties in determining whether the Regulations apply.

Cannon v Noonan Cleaning Limited [1998] 9 ELR 153

CPS Security Services Limited

Marie Power & Others v St Paul’s Nursing Home and T&M Cleaning Limited

Ms Doyle said that these three cases were referred to by Mr John McMullen in his paper, “An Update on Transfer of Undertakings” published by University College Dublin in February 2005. These demonstrate that a transfer can take place where the principles set out in the Suzen case are applied.

Bourke v G4S Secure Solutions (Ire) Limited (unreported) 6 April 2017 (EAT)

A Manager v A Pizza Company (unreported) 23 October 2017 (WRC)

In both of these cases, awards were made to the complainants as a result of findings that the Regulations applied to the circumstances of their transfers.

Finally, Ms Doyle referred to an article by Mr John Curran in the Irish Employment Law Journal 2007, 4(1) 15- 19, with the title, “Transfer of Undertakings and Changing Sub-contractors, Do the Regulations Apply?” In considering this question, Mr Curran said that the following factors must be considered:

What are all the surrounding circumstances? Do the tender documents indicate an intention that the Directive may apply?

Have any assets transferred, tangible or intangible?

Has the new contractor continued to use equipment utilised by the old contractor?

Has any portion of the staff transferred, particularly key staff?

Is there evidence that the refusal to take on the previous staff is intended to get around the directive? Are the new staff going to be paid less?

Is the business being carried out in the same way and are its activities similar in most respects?

The complainant’s case is that the Transfer of Undertakings Regulations apply to the transfer from Company A to the respondent in this case and that the respondent has failed to engage with the complainant or to employ him since December 11th 2018, the date of the transfer. Ms Doyle argued that the contract that transferred is a stable economic entity and the complainant is entitled to conclude that he has been dismissed.

The respondent said that in December 2017, they won a new contract to provide security at the Dublin venue. In October 2017, prior to the transfer of the contract, the operations director said that they were informed by Company A that only one employee was assigned to “static permanent duty” at the site. They produced a copy of an e mail from the manager at the Dublin venue to the respondent’s operations director. The mail is dated October 5th 2017 and it shows that Company A wrote to the venue’s manager and stated, “from our records it appears that (name of the employee who transferred) would be the only member of our staff that TUPE would apply to.”  

The respondent’s information was that three other employees were called in to work when events were on, and one of these had been out sick since February 2017.   They were also informed that the three others worked at various locations where the company had contracts to provide security services.

On January 18th 2018, the complainant met with the operations director and he claimed that he had an entitlement to a contract at the Dublin venue for 48 hours per week. The operations director said that the hours being claimed were not available at the venue and the respondent could not have engaged the complainant at that location for 48 hours per week. The operations director offered the complainant work across other sites, but the complainant refused and claimed that he had an entitlement to 48 hours each week at the Dublin venue.

For the respondent, Mr Flanagan referred to the CJEU case of C-24/85, Spijkers v Gebroeders Benedik Abbatoir CV [1986] ECR1119.   Mr Spijkers was one of two employees not transferred to Benedik Abbatoir following the sale of the slaughterhouse where he worked. In its seminal findings, the Court determined the principles of a transfer in the following terms:

“It is necessary to consider all the facts characterising the transaction 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 remain clear, however, that each of these are merely single factors in the overall assessment which must be made and cannot therefore be carried out in isolation.”

The respondent’s case is that the contract that it took over was for the provision of security at the Dublin venue. It did not take over the business of Company A in its entirety.

The respondent won the contract to provide security at the Dublin venue exclusively. They are at one with the complainant’s solicitor, Ms Doyle, as they also claim that this is a “second generation transfer” within the meaning of case C-13/95,Suzen v Zehnacker Gebaudereinigung GmbH Krankenhasusservice [1997] ECR1-1259. Here, the CJEU determined that the Transfer of Undertakings Regulations, “…do not apply…if there is no concomitant transfer from one undertaking to the other…or taking over by the new employer of a major part of the workforce in terms of their number and skills, assigned by his predecessor to the performance of the contract.”

Mr Flanagan argued that the decision in the Suzen case creates a condition for the Regulations to apply where a workforce is taken over which was assigned by the predecessor contractor “to the performance of the contract.” He argued that the only member of the workforce of Company A assigned to the performance of the contract was the employee who transferred to Company B.

Under the heading of “Job Flexibility,” the complainant’s contract states:

“It is an express condition of employment that you are prepared, whenever necessary, to transfer to alternative departments or duties within our business. This flexibility is essential as the type and volume of work is always subject to change and it allows us to operate efficiently and gain maximum potential from our workforce.”

The respondent argues that this means that the complainant was required to move to different sites, depending on the work available to Company A. The only member of the predecessor contractor who was assigned on a permanent basis to the Dublin venue was transferred to the respondent.   As the complainant was not assigned to the Dublin venue specifically, and, as his contract provided that he could be assigned to work at different locations, the respondent’s position is that the Transfer of Undertakings Regulations do not apply.

Having made the argument that the Regulations do not apply to the complainant, the respondent also argues that he was not obliged to employ the complainant on the terms demanded by him, that is, on a full-time basis at the Dublin venue for 48 hours per week. Mr Flanagan referred to the case of Maybin Support Services v Kelleher, TU 27/2013, which he said is analogous to the case under consideration here. In Maybin, the Employment Appeals Tribunal (EAT) found that there was no transfer of undertakings within the meaning of the Regulations. The Tribunal reached this conclusion despite the fact that the employer wrote to the two employees concerned, informing them that their employment would be transferred.

Maybin concerned a second generation contract where a contract to clean a particular site was taken up by Mayin Support Services Limited who refused to employ the first employer’s workers. Finding that a transfer did not occur, the EAT relied on the case of C-173/96 Sanchez Hadalgo [1998] ECR I-8237. Applying Suzen and Sanchez Hidalgo, the EAT, in Maybin, held that “the company has conflated what they deemed to be an entitlement to transfer with an actual transfer.” It is the respondent’s position that the complainant has similarly conflated an entitlement to transfer, when no transfer arose for the contract at the Dublin venue in relation to his specific assignment.

It is the respondent’s case that, in determining whether a transfer has taken place, each case should be decided having regard to the totality of factors at the time. It is the respondent’s view that the complainant was not specifically assigned to the Dublin venue and that he worked on numerous other sites for his previous employer. In his evidence, the operations director of Company B said that the security contract on the Dublin venue was for 168 hours per week.   The man who transferred had an entitlement to work for 60 hours a week. The operations director argued that the complainant’s claim that he was entitled to work 48 hours on this site could not be accommodated, as there were not enough hours in the contract. His case is that the Regulations do not apply to the complainant as the performance of the contract at the Dublin venue related to one static worker of the previous employer. Notwithstanding the respondent’s position in this respect, the complainant was offered work at locations other than the Dublin venue.   The respondent denied that the complainant was offered a zero hours contract and said that between 30 to 40 hours and even up to 50 hours’ work was available to him, but he refused to take up this offer.

The chief executive of the respondent company said that from December 4th, they had employees training to work on the new contract. They had engaged with Company A with regard to the Transfer Regulations and they were informed that only one employee was eligible to transfer.   Around the first week of December 2017, they heard from the complainant and his brother that they also wanted to transfer.

For Company A, the managing director said that the focus of its business is event security. In October 2017, when the contract for security at the Dublin venue was put out to tender, his company did not submit a tender. He said that the complainants worked at other locations as well as the Dublin venue and sometime did double shifts, working there and at other locations.   One security guard had been out sick since early 2017 and the managing director said that the complainant and his brother covered this man’s shifts.

At the hearing, the managing director for Company A said that the complainant and his brother did not get on with the management at the Dublin venue and that his assumption was that they would stay with his company and not transfer. He said that they were “a valuable asset to our company.”

The Facts of the Case

Before setting out my findings on this complaint, I wish to set out my understanding of the facts as they were presented at the hearing:

In October 2017, Company A informed the client at the Dublin venue that, if the contract went to a new provider, only one of the four employees who worked on the contract would be entitled to transfer. One employee was named in this correspondence who is not the complainant.

The complainant has a contract of employment that provides that he works “only at the (Dublin venue)” and that he has “48 hours’ guaranteed at €11.25 per hour, everything else at time and a half.” It is apparent from this that the complainant was assigned to the Dublin venue and that he worked for a minimum of 48 hours per week.    

On December 1st, the managing director of Company A wrote to the complainant to let him know that the Transfer Regulations applied to him:

“Under TUPE legislation (2003) you are entitled to seek to retain your current position should you wish to do so.”

It is my understanding that the reference to “your current position” in this note refers to the job of providing security at the Dublin venue.

On December 4th, employees from Company B were on the Dublin venue site to train as security guards. Also, on December 4th, a named employee transferred to Company B.

It appears that the complainant worked until December 8th. On December 18th, he wrote to Company B’s operations director, asking to be transferred. He went on holidays over Christmas and, after several phone calls in early January ,he met the operations director on January 18th 2018. He was informed that work was available for him, but not based on a guarantee of 48 hours per week at the Dublin venue. He refused to work for Company B without this guarantee.

There are certain matters about this case that were somewhat contradictory. The first of these is that Company A informed the client that only one employee was eligible to transfer under the Transfer Regulations. This is at odds with the same manager’s communication to the complainant, in which he said that the he could retain his current position, “should you wish to do so.” Another conundrum is the fact that Company A’s payroll manager communicated with the respondent’s operations manager as if the complainant was transferring.

Company A said that the complainant was offered work after the contract on the Dublin venue went to Company B but that he refused this offer. The respondent’s evidence is similar; the complainant was offered work but did not take up the offer. While Company A’s managing director said that the complainant was a “valuable asset,” there was no indication that he was put on a roster for work when he finished up at the Dublin venue.   With his “bottom line” issues not negotiable, the complainant went looking for a job somewhere else.

Do the Transfer of Undertakings Regulations Apply to this Transfer?

The objective of the Transfer of Undertakings Regulations as they are set out in Irish law (SI 131/2003) is to safeguard the rights of employees in circumstances when the business or part of the business in which they are employed is transferred from one employer to another.  

Article 3(1) of the Regulations states that they “shall apply to any transfer of an undertaking, business, or part of an undertaking or business from one employer to another employer as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger.” The crux of the issue I have to consider is the effect of what is known as a “second-generation transfer” where a contract to carry out some activity such as cleaning, catering or security is ceased and awarded to another contractor.   In these circumstances, is there a transfer of an undertaking?

Article 3(2) defines a “transfer” as “the transfer of an economic entity which retains its identity;” and an “economic entity” as “an organised grouping of resources which has the objective of pursuing an economic activity whether or not that activity is for profit or whether it is central or ancillary to another economic or administrative entity.”

In reaching a conclusion on this case, I am indebted to the exploration of the case law in John Curran’s article, “Transfer of Undertakings and Changing Sub-contractors – Does the Directive Apply” in the Irish Employment Law Journal 2007, 4(1), which was brought to my attention by the complainant’s solicitor, Ms Doyle.

The Spijkers case of 1986 was referred to by both sides at the hearing of this complaint, for good reason, as the findings here determined that the decisive criterion in considering if a transfer has taken place is whether the business retains its identity.

After the Suzen case of 1997 (also referenced by both parties), it is evident that the CJEU and the national courts took a more circumspect approach to second generation transfers, as the Court decided that,    

“…the directive does not apply to a situation in which a person who had entrusted the cleaning of his premises to a first undertaking terminates his contract with the latter and, for the performance of similar work, enters into a new contract with a second undertaking, if there is no concomitant transfer from one undertaking to the other of significant tangible or intangible assets or taking over by the new employer of a major part of the workforce, in terms of their number and skills, assigned by his predecessor to the performance of the contract.”

The Suzen judgement also concluded that, “the transfer must relate to a stable economic entity whose activity is not limited to performing one specific works contract.”

A year later, in 1998, the EAT considered the impact of the Suzen findings in Cannon v Noonan Cleaning Limited and CPS Cleaning Services Limited, [1998], ELR 153.   This concerned the transfer of a contract to clean Balbriggan Garda Station from Noonan Cleaning to CPS.   Finding that the transfer did not constitute a transfer of an undertaking, the chairman, Mr Peter O’Leary noted that the contract to clean the Garda Station “was only one segment of Noonans' business which presumably is nationwide and is now one segment of the new contractor's operations.”

The Noonan case has some obvious similarities to the case under consideration here, where just one contract employing four people was lost by Company A and taken up by Company B.

The issue of the transfer of a tangible or an intangible asset was also addressed in the Noonan case where it was found that no tangible asset transferred and the profit to be made from the transfer constituted an intangible asset. Mr O’Leary concluded:

“Also, the possible transfer of the intangible profit margin is not of sufficient significance of itself to be a major factor in the transfer. It follows then that this transfer is not caught by the Directive as it does not constitute a transfer of undertaking.”

Suzen was varied in the EAT decision of Collins v Excel Property Services Limited, RP 27/98 when it was found that the Regulations applied because all the employees transferred.

Conclusion

It was apparent at the hearing of this complaint that there was some obfuscation on the part of the employers about the application of the Transfer Regulations. The managing director of Company A confirmed to the client that the Regulations did not apply to the complainant. He gave the complainant a contrary message. The payroll manager of Company A wrote to Company B and referred to the complainant as if he had an entitlement to transfer. The operations director of Company B met the complainant and told him that he would not be assigned to work at the Dublin venue, but he did offer him alternative work. Leaving aside all the contradictions, I have endeavoured to reach a conclusion based on the facts and on how similar transfers have been considered by the CJEU and the EAT.

I must return to the findings of the CJEU in the Spijkers case and “consider all the facts characterising the transaction question...”

It could be argued that the contract to provide security services at the Dublin venue is a singular contract that was not changed in any material way by the transfer. In this respect, the business retained its identity.   However, when we consider the fact that just one customer transferred from Company A to the respondent, it follows that this contract is not a “business” in any real sense. It simply comprises a customer contract which, like the Noonan / CPS case, was part of Company A’s operations and is now part of Company B’s. I agree with counsel for the respondent when he said that this contract is not a stable economic entity as it is limited to performing one specific contract.

There was no transfer of tangible assets and the only intangible asset that transferred was the possible profit from the provision of 168 hours of security at the Dublin venue.

Of Company A’s 300 employees, just four were assigned to the contract, one of who had been absent due to illness for almost a year. The Suzen case has determined that, where a significant part of the workforce does not transfer, the Regulations do not apply.

Finally, I am mindful of the fact that the complainant had an option to continue in the employment of Company A and the transfer of the contract did not mean that his job was redundant.

Having considered the evidence presented at the hearing, I find that a transfer of undertakings did not take place within the meaning of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, for the following reasons:

The part of the business that transferred is not a stable economic entity, but a single contract for one client to provide 168 hours of security;

Only three employees out of a workforce of 300 were affected by the transfer;

There was no transfer of assets or equipment and no significant transfer of intangible assets.

Having been informed that he would not be assigned to the Dublin venue, the complainant had two options; he could have remained with Company A, or, he could have taken up the offer of employment with Company B. I am satisfied that whichever option he might have selected, he would not have suffered any detriment. In the current environment, where it is difficult to recruit registered security operatives, there was every chance that he would have been employed into the foreseeable future and he would not have experienced a reduction in his earnings.   The existence of the Employment Regulation Order for the Security Industry ensures that there would have been no diminution in his conditions of employment.

I have concluded that the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 do not apply to the circumstances of the complainant in this case, and I decide therefore that his complaints are not upheld.

Transfer of undertakings