Complainant

Transferor

Anonymised Parties

User Interface Designer

Engineering Company

Representatives

Sherwin O'Riordan Solicitors

Management Support Services (Ireland) Ltd

Act

Complaint 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-00029990-002

31/07/2019

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-00029990-004

31/07/2019

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-00029990-006

31/07/2019

The Complainant commenced employment with the Transferor (the Respondent) on 28th September 2016. A   transfer of undertakings, within the meaning of Regulation 3 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, took place on 1st February 2019 when the business of the Transferor was taken over by the Transferee.

The Complainant submits that the Transferor did not comply with the requirements regarding information and consultation pursuant to Regulation 8 in relation to her.    

The following is a summary of the Complainant’s submission:

A transfer of undertakings, within the meaning of Regulation 3 of the 2003 Regulations, took place on 1st February 2019 when the business of the Transferor was taken over by the Transferee. The employees of the Transferor transferred to the Transferee and they remained in the same offices where they used the same tangible assets and intangible computer-based assets to perform their duties for the Transferee as they had done previously for the Transferor.

The Deputy Director of the Transferee, convened an impromptu meeting of the Transferor’s staff on or about 7th November 2018. The Deputy Director of the Transferee told those present at the meeting that the employment contracts of only two of the Transferor’s staff members had transferred to the Transferee. Neither of the two staff members were present at that meeting. The Deputy Director of the Transferee did not, however, indicate in any way whatsoever to those present at the meeting on 7th November 2018 that their contracts of employment would also be affected by the transfer nor did he furnish the Complainant with details of any implications to her contract of employment. The Complainant had only just been made permanent with the Transferor at the end of September 2018.

By email dated 5th February 2019, the Transferee’s Recruitment and Talent Manager first notified the Complainant that her employment contract had transferred from the Transferor to the Transferee on 1st February 2019.

The Transferee’s Recruitment and Talent Manager’s email prompted a telephone discussion that afternoon between the Complainant’s colleagues in Dublin and the Transferee’s Recruitment and Talent Manager, who is based in the Transferee’s head office in another country. Following on from this telephone conversation, one of the Complainant’s colleagues in Dublin sent an email to HR on 5th February 2019 complaining that no staff member had been informed prior to 1st February 2019 that the transfer would take place on that date and he also complained about the lack of information given in terms of the employees whose contracts of employment would be affected as a result of the transfer. The Deputy Director of the Transferee replied to this email on 5th February 2019 and alleged that he had informed all affected employees in October 2018 of the need to move from the Transferor to the Transferee and that he had instructed the Complainant’s line manager to inform her and her colleagues about the date or proposed date of the transfer. The Deputy Director of the Transferee acknowledged in his email that that information had not been communicated to the Complainant and her colleagues, and he apologised for this.

It is submitted that the Transferee’s apology of 5th February 2019 does not excuse or satisfy its breach of Regulation 8 of the 2003 Regulations.

The following is a summary of the Transferor’s (Respondent) position:

On or about 31st October 2018, the Deputy Director of the Transferee held a meeting with all staff of the Transferor in the Dublin office, including the Complainant. The purpose and content of the meeting was to advise and inform the staff that all resources of the Transferor including staff would be transferring to the Transferee. During this meeting the staff raised no concerns or objections and they were informed that all terms and conditions of employment would transfer with them to the Transferee.

In relation to each specific complaint, the Transferor submits as follows:

CA-00029990-002   The Transferor did not inform employee representatives of certain details of the transfer

A meeting was held with the staff of the Transferor including the Complainant, on or about 31st October 2018. At that meeting all staff, including the Complainant, were given the required information under the regulations. They were informed that all staff the Transferor would be moved to the Transferee. In addition, at this meeting staff were informed that there would be no changes to their terms and conditions. They were was advised that the expected date of the transfer would be the end of November 2018. Ultimately, however, the date turned out to be 1st February 2019.

It is clear that the Transferor met with staff and complied with its obligations, under the regulations to inform the staff of the change and how it affected them.

Ultimately there was no change to the Complainant’s terms and conditions of employment as a result of the transfer.

CA-00029990-004   The Transferor did not consult in relation to the transfer

Section 8 (4) of S.I. No.131/2003 European Communities (Protection of Employees on the Transfer of Undertakings) Regulations 2003 states:

“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”.

The obligation to consult with the Complainant only arises in circumstances where either the Transferor or the Transferee prior to the transfer envisages “measures” in relation to the employees. While there no clear definition of “measures” in the regulations or in case law, the English EAT in Todd v Strain [2011] I.R.L.R. 11, held that “measures” included any action, step or arrangement including the pay arrangements whereby employees were paid earlier in the month.

The Transferor envisaged no such “measures” in relation to the Complainant and as such the obligation to consult with the employees including the Complainant under Section 8 (4) of the regulations does not apply.

CA-00029990-006   The Transferor did not advise in relation to the transfer

The regulations are silent as to what is meant by “advise” and the current case law is also silent as to what the duty to advise requires.   It is common practice, and the preferred approach of the judiciary in this jurisdiction, that where the legislation is silent as to the meaning or definition then each word should be given its ordinary common meaning. Advise is defined by the Oxford English Dictionary as: offer suggestions about the best course of action to someone. In the Cambridge Dictionary it is defined as: to give someone advice.

It is clear from the regulations that the duty to consult only arises in situations where “measures” in relation to the employee are envisaged. Therefore, giving the ordinary meaning of the word, the obligation to advise, that is to say offer suggestions as to the best course of action only arises as it does with the duty to consult in situations where “measures” are envisaged in relation to the employee.

The Transferor submits that it was not in a position to advise in relation to “measures”, in a situation where no such “measures” existed. The Transferor contends that, at all times it acted reasonably and responsibly toward its employees.

The Transferor further submits that at all times it complied with its duty to inform the Complainant that the transfer was happening, when it would happen and the effect of the transfer on the Complainant. As no “measures” were envisaged, the requirement to consult and advise does not arise.

CA-00029990-002   The Transferor did not inform employee representatives of certain details of the transfer

Regulation 8(1) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 requires that “the transferor and transferee concerned in a transfer shall inform their respective employees' representatives affected by the transfer of (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”.

Regulation 2 defines “employees' representatives” as :

“(a) a trade union, staff association or excepted body with which it has been the practice of the employees' employer to conduct collective bargaining negotiations, or (b) in the absence of such a trade union, staff association or excepted body, a person or persons chosen by such employees (under an arrangement put in place by the employer under Regulation 7(2) or 8(5)) from among their number to represent them in negotiations with the employer”.

In the herein case, the Transferor’s employees did not have representatives within the meaning of Regulation 2 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. I find, therefore, that this complaint is not well founded.

CA-00029990-004   The Transferor did not consult in relation to the transfer

Regulation 8(4) requires that “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”.

Whilst the term “measures” is not defined in the Regulations, precedent in this regard suggests that it includes any change affecting employees which is not trivial.

The Transferor contends that no such “measures” were envisaged in the context of the transfer of undertakings.   The Complainant has not adduced any evidence to suggest otherwise.   I find, therefore, that this complaint is not well founded.

CA-00029990-006   The Transferor did not advise in relation to the transfer

Regulation 8(5) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 requires that “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”.

Regulation 8(6) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 requires that “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:

(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.”

In the herein case, no representatives were in place to represent the Complainant and her colleagues in relation to the Transfer of Undertakings. I find, therefore, that the Complainant falls within the ambit of Regulation 8(6). Under Regulation 8(6) there is a requirement that “each of the employees concerned must be informed in writing” (emphasis added) of a proposed transfer and a number of related matters.

The Complainant submits that the Transferor did not provide her with the any of the information required pursuant to regulation 8(6).

The Transferor disputes this and contends that the Complainant and her colleagues were informed of the proposed transfer of undertakings on or about 31st October 2018. However, the Transferor has not adduced any evidence to support this contention.

The Complainant, on the other hand, has submitted a copy of an email from one of her colleagues dated 5th February 2019 addressed to the HR Manager of the Transferee in which he wrote as follows:

“We have some complaints that were discussed on the phone.   This is a sum up of the telephone conversation:

·         The last time [the Deputy Director of the Transferee] was in Dublin office (middle of January) he did NOT inform that all the staff were changing company on 1st February, he did inform in October that a change will happen, but did not specify when and who will be affected.

·         No person notified any member of Dublin’s staff, including [the administrator] that the change will be done on 1st of February.

·         Not even [the administrator] was aware of the change.

·         No information about the new nature and duration of contracts were ever reported.”

The Deputy Director of the Transferee replied to employee’s email as follows:

“I am writing to all of you because from administration/HR I have been communicated about your desire of letting me know your complaints about not informing you that there was a plan to transfer you from one company to another.

I expressly informed you about the need of moving from [the Transferor] to [the Transferee] in October 2018 when I went to Dublin to visit you to explain this in person. In this meeting I said that your direct responsible would be the one who would let you know about the specifics around the date. The communication channel did not work as expected, so my apologies for this."

In light of the above emails, and in the absence of any cogent evidence to the contrary from the Transferor, I find the Complainant’s version of events to be more credible.

Accordingly, I find that the Transferor did not comply with the requirements of Regulation 8(6) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 with regard to the requirement to advise the Complainant, in writing, of a proposed transfer of undertakings and to provide the information required under Regulation 8(6).

It should be noted, however, that pursuant to Regulation 4(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.”

In Rotsart de Hertaing v J Benoidt SA Case C-305/94 [1996] ECR I-52927, the ECJ held that:

“Article 3(1) of the Directive is to be interpreted as meaning that the contracts of employment and employment relationships existing on the date of the transfer of an undertaking, between the transferor and the workers employed in the undertaking transferred, are automatically transferred from the transferor to the transferee by the mere fact of the transfer of the undertaking, despite the contrary intention of the transferor or transferee and despite the latter’s refusal to fulfil his obligations.”

I find, therefore, that liability in respect of the herein claim rests with the Transferee and not with the Transferor. I have addressed this matter in the context of my decision in relation to the Complainant’s claims against the Transferee – ADJ-00023614.

I find, therefore, that this complaint is not well founded.

CA-00029990-002   The Transferor did not inform employee representatives of certain details of the transfer

I find that this complaint is not well founded.

CA-00029990-004   The Transferor did not consult in relation to the transfer

I find that this complaint is not well founded.

CA-00029990-006   The Transferor did not advise in relation to the transfer

I find that this complaint is not well founded.

Transfer of Undertakings – Information and Consultation