FULL RECOMMENDATION
PARTIES : ACCENT SOLUTIONS DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00028530 CA-00036644-005 Background An entitlement to avail of health insurance (VHI Plan B) formed part of his terms and conditions of employment. An alternative package was offered to him, which was an inferior package to the one he previously received. The Complainant seeks €4,223.13 as compensation for the breach, which he says is equivalent to the cost of the health insurance scheme contributions that the Respondent should have paid on his behalf since the date he transferred his employment. It established that the Complainant had a contractual entitlement to avail of health insurance cover but had let his membership lapse when he was employed by his previous employer. The Complainant indicated that he wished to have his health insurance reinstated and he was given the option of joining the Respondent’s health insurance scheme (Irish life 4D Health 2), which is substantially equivalent to his previous scheme. The Respondent maintains that it offered the Complainant access to a substantially equivalent health insurance scheme and therefore no contravention of the TUPE Regulations occurred. 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. (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. In response to questions from the Court, the Complainant confirmed that the contractual entitlement which he seeks to maintain arises from his 2006 contract of employment which states as follows “You will be entitled to join the group VHI scheme; the company will cover your costs up to Plan B”. While the Complainant’s initial contract of employment in 2006 provided him with access to VHI Plan B, he accepts that at a later point he was provided with access to different group plans provided by other providers, Irish Life and Aviva. It is also accepted that the Complainant let his group membership lapse prior to the transfer of his employment to the Respondent. The Respondent accepts that under the Complainant’s contract of employment he was entitled to join a group health insurance scheme. It submits that once it became aware of this matter, and the Complainant indicated that he wished to have his health insurance reinstated, they facilitated that request with access to a scheme that was substantially equivalent to his previous scheme. However, the Complainant did not avail of that offer. In these circumstances, it submits that no breach of the Regulations occurred. The Complainant takes issue with the fact that, since his employment transferred to the Respondent, no contributions were paid by the Respondent to his health insurance, and he did not receive the benefit of the plan which the Respondent proposed. As such he submits that he was at a loss and suffered less favourable terms and conditions of employment in breach of the Regulations. In the view of the Court, in circumstances where the Complainant let his health insurance membership lapse prior to transferring employment to the Respondent, and then declined to join the group scheme offered to him when he indicated his wish to reinstate his health insurance, the Complainant cannot rely on an assertion that he was at a loss because he was denied a contractual entitlement to join a group health insurance scheme. The Complainant also takes issue with the terms of the group scheme offered to him, which he says were inferior to terms he previously enjoyed, particularly in relation to orthopaedic care. The Respondent refutes this and submits that, while aspects of the scheme differed, it was a substantially equivalent scheme. It is accepted that the terms and options available under different health insurance schemes have become increasingly complex and varied in recent years. A group scheme may not cater to everyone’s individual preferences. The Court is not an expert on the terms of health insurance schemes. It is not the role of this Court to conduct an assessment of the complex range of benefits offered under one scheme in comparison to another. No expert evidence was offered to the Court to assist it in relation to this matter. In all of the circumstances, the Court cannot find that the health insurance terms offered by the Respondent were lesser terms in the round than those held by the Complainant previously. Having regard to all of the circumstances of this case, the Court finds that no breach of the Regulations occurred. Determination For the reasons set out above, the Court finds that the Respondent was not in breach of the Regulations. The Decision of the Adjudication Officer is upheld accordingly.
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