LCR22358

1.Transfer of Undertakings

BACKGROUND:

2.In February 2020, one hundred and six cleaning and catering staff previously employed by St Patrick’s Mental Health Services (‘SPMHS’) transferred to either Bidvest Noonan Services (cleaning staff) or QCafé (catering staff) pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (‘the Regulations’).

As part of the transfer process, four workers employed in St. Edmundsbury Hospital were identified as having specific duties related to the pantry there and, consequently, they transferred to Bidvest Noonan Services.

A number of months after the transfers, Bidvest Noonan identified that the duties of the four workers concerned were more aligned to those of the catering staff and a new transfer process was initiated to provide for the transfer of pantry workers to QCafé.

The workers dispute the requirement to transfer to QCafé and submit that their work is more appropriately aligned with household work rather than catering work.

It appears that they are concerned that should the proposed transfer go ahead, there will be a fundamental change in the nature of their work such that they will be required to work in the kitchen, carry out catering assistant roles, and report to the Chef Manager.

It is submitted on behalf of Bidvest Noonan and QCafé that there have been protracted discussions with the Workers and their Union, in the course of which every effort has been made to assure the Workers that no changes to their terms and conditions of employment are envisaged.

The matter was referred to the Labour Court and a hearing took place on 14 January 2021.



RECOMMENDATION:

The Regulations provide robust protections to workers whose employment transfers from one employer to another pursuant to a transfer of undertaking, within the meaning of the Regulations. Such workers are entitled, inter alia, to continuity of employment on no less favourable terms and conditions.

In short, no fundamental changes to those terms and conditions are permitted arising from the transfer event only.

Having regard to the protections guaranteed by the Regulations to the Workers who are the subject of this dispute, the Court recommends that the proposed transfer of their employment from Bidvest Noonan to QCafé should proceed, subject to the information and consultation requirements of the Regulations having been fulfilled.

In the event that the Workers find that the transfer results in a fundamental change to their terms and conditions of employment not permitted by the Regulations, they will have recourse to the Adjudication Service of the Workplace Relations Commission and the Labour Court on appeal to seek redress, as appropriate, under the Regulations.

The Court so recommends.

	Signed on behalf of the Labour Court
	Alan Haugh
NJ	______________________
8 January 2021	Deputy Chairman