TUD204

1.An Appeal of an Adjudication Officer's Decision No(s)ADJ-00012812 CA-00016889-001/5/6/9

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officer to the Labour Court under the European Communities (Protection of Employees on Transfer of
Undertakings) Regulations 2003 (S.I.131 of 2003).
A Labour Court hearing took place in a virtual setting on 12 November 2020.
The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Andrea O’Connor against an Adjudication Officer’s Decision given under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I.131 of 2003). The Adjudication Officer found that no transfer of undertakings had occurred.

Background

The Complainant commenced work in September 2014 with the Respondent and her last day working for the Respondent was 24^thAugust 2017. It is the Complainant’s submission that either she was transferred to another organisation in which case the Respondent had not complied with the requirements of Regulations 4 and 8 of S.I.131 of 2003 or she was made redundant. It is the Respondent’s submission that the complainant and her colleagues were transferred by operation of the Transfer of Undertakings Regulations to a named company.

Respondent’s Submission

This case is an unusual case as the four workers are not grades that the Respondent would normally recruit. In 2004 the Respondent was approached by their client, University Hospital Kerry and asked to recruit a number of Health Care Assistants (HCA) which were then to be placed withtheUniversity Hospital. While the recruitment process was run by the Respondent the HSE had a member of staff on the interview board. A total of 14 staff, all at Health Care Assistant grade,were recruited in this manner. The staff were paid through Noonan’s payroll and issues relating to annual leave and sick leave were dealt with by Mr O Connor, a manager with the Respondent. A member of the nursing staff from the hospital would contact Mr O Connor requesting a HCA who would then report to the nurse. The nurse would assign tasks and hours to the HCA.

In or around the 10^thAugust 2017 the HSE sent an email to all HSE staff outlining the New Multi-Supplier framework for the provision of short-term temporary and locum agency staff. The Respondent was not made aware of this development by the Hospital at the time. The framework outlined that as and of the 1^stSeptember 2017 there was a new framework for the delivery of agency services for each of five categories of employees one of which was HCA’s. It went on to state that there would be a principal supplier and four secondary suppliers for each category and identified who the principal suppliers were to be. The Respondent through Mr O’Connor attempted on a number of occasions to clarify with the Hospital how this would impact on their HCA’s. On the 30^thAugust 2017 Mr O Connor eventually managed to make contact with the Operations Manager at the Hospital who informed him that they were now legally obliged to use the preferred provider from the 1^stSeptember 2017. The staff were provided with P45’s and advised to apply for jobs with the new providers. The Respondent did not have any engagement with the preferred provider.

Complainant’s Submission

It is the Complainant’s submission that when they were assigned to the hospital the assignments tended to be long term rather than short term in nature i.e. covering maternity leave or long- term absences. In some instances, the HCA worked in the same area for the duration of their employment. In mid-August, the Complainant heard rumours that Noonan’s were losing the contract for HCA’s so she approached Mr O’ Connor regarding same, and he advised that he “didn’t have a clue” about what was happening. She then contacted her Union who emailed the Respondent on the 14^thAugust seeking information in relation to what was happening. This was followed up with a phone call to Mr O Connor who advised that as far as he knew there would be no work for the 14 HCA’s from September 2017. He indicated that should this happen they would be notified by letter.

It is the Complainant’s submission that the next thing that occurred was that their access badges/fobs were disabled. The Union again contacted the Respondent on the 30^thAugust to establish what was happening. There followed several exchanges of correspondence which cumulated in a letter dated 21^stSeptember 2017 from the Respondent. The letter advised that as the client University Hospital Kerry had transferred its business to TTM the Complainant would be processed as a leaver from Noonan and would be given their P45 in due course. They were also requested to return their HSE issued ID badges as they were the property of University Hospital Kerry.

The Applicable Law

Regulation 3 of the Transfer Regulations provides:

• (1) These Regulations 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.
  
  (2) Subject to this Regulation, in these Regulations—
  
  “transfer” means the transfer of an economic entity which retains its identity;
  “economic entity” means 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.
  
  (3) These Regulations shall apply to public and private undertakings engaged in economic activities whether or not they are operating for gain.

Discussion and Decision

The Court has to determine whether there was a transfer within the meaning of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 ( “the Transfer Regulations”).

It is clear from the legislation that for a transfer to occur there must be a transfer of an economic entity. The legislation goes on to set out that an economic entity means an organised grouping of resources which has the objective of pursuing an economic activity.

The issues surrounding what constitutes an entity have been considered a number of times by the Court of Justice of the European Union(CJEU). In the case ofSuzen v Zehnacker Gebaudereinigung Krankenhausservice(C-13/95) at paragraph 10 the CJEU stated:

• “the aim of the directive is to ensure continuity of employment relationships within an economic entity, irrespective of any change of ownership. The decisive criterion for establishing the existence of a transfer within the meaning of the directive is whether the entity in question retains its identity as indicated inter alia by the fact that its operation is actually continued or resumed (Case 24/85 Spijkers[1986] ECR 1119, paragraphs 11 and 12)”.

• “For the directive to be applicable, however, the transfer must relate to a stable economic entity whose activity is not limited to performing one specific works contract ( Case C-48/94 Rygaard[1995] ECR I-2745 paragraph 20). The term entity thus refers to an organised grouping of persons and assets facilitating the exercise of an economic activity which pursues a specific objective.”

• “The presence of a sufficiently structured, and autonomous entity within the under-taking awarded the contract is, in principle, not affected by the circumstance, which occurs quite frequently, that the undertaking is subject to observance of precise obligations imposed on it by the contract -awarding body. Although the influence which the contract-awarding body has on the service provided by the undertaking concerned may be extensive, the service-providing undertaking nevertheless normally retains a certain degree of freedom ,albeit reduced in organising and performing the service in question, without its task being capable of being interpreted as simply one of making personnel available to the contract-awarding body.

• “ the mere fact that the service provided by the old and new undertaking providing a contracted-out service or the old and new contract holder is similar does not justify the conclusion that there has been a transfer of an economic entity between the successor undertakings. Such an entity cannot be reduced to the activity entrusted to it. Its identity also emerges from other factors, such as its workforce, its management staff, the way in which the work is organised, its operating methods or indeed, where appropriate, the operational resources available to it (Suzen)”.

The Court determines that no autonomous entity existed within Noonan’s rather there was an arrangement akin to an agency arrangement whereby Noonan’s provided HCA staff to University Hospital Kerry. On the basis that no entity capable of being transferred existed no transfer as defined by the Regulations occurred. Therefore, the appeal must fail. The Decision of the Adjudicating Officer is upheld

The Court so Determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
DC	______________________
11 December 2020	Deputy Chairman