Complainant

Respondent

Parties

Owen  Phelan

HCL  Ireland Information Systems Limited

Complainant

Respondent

Anonymised Parties

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Representatives

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-00050751-001

23/05/2022

The complainant has brought a claim under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) in which he alleges that there has been a breach of Regulation 4.

The respondent took over the contract from the outgoing subcontractor, NTT Data Services Ltd to provide a large bank with support services in multiple countries including Ireland.

The complainant states that following a transfer to his current employer, he was advised by the respondent that his role as Wintel Engineer was no longer needed.  The complainant states that he was informed that he will now be working with another team, namely the Break/Fix Team. The complainant states that the Break/Fix Team is a lower level support and would be classed as a demotion while making his current role redundant.

As background the complainant states that there was a TUPE move going back to 2016 from his original contract with Citi for 19 years in total. The complainant states that the employees moved via the TUPE process to Dell back in 2016 then the contract was bought by NTT Data in 2017 and the respondent in 2022. The complainant states that he and his colleagues have been Wintel Engineers for over 10 years with a clear distinction between his team and the Break/Fix Team. It was submitted that the Wintel team are third level support focusing on project work for example, migrations, hardware and software, VTM patching and asset management, MAC support etc. The complainant states that they have their own DL, ServiceNow queue and change approval queue.  The complainant states that as a result of the move, he feels his role has been demoted and that the work involved in the Break/Fix Team is a lower-level support.  

The complainant alleges that the respondent is in breach of Regulation 4 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

The respondent states that it took over the contract from another subcontractor NTT Data Services Ltd to provide a large bank with support services in multiple countries that includes Ireland. It states that the complainant was one of a number of employees who transferred to the respondent company.

The respondent states that of those five who transferred, the complainant was one of two “Senior Specialists” and the other employees were two “Specialist” and one “Senior Analyst”. The respondent states that it accepts that this is a relevant transfer for the purposes of the Regulations and therefore all five employees transferred to their employment on 1 February 2022.

The respondent maintains that before the transfer, in NTT Data’s structure (the outgoing contractor) the complainant was described as a “Field Tech Specialist, Grade 8”, NTT Data informed the respondent that he held this position from at least June 2017, to the time of his transfer to the respondent on 1 February 2022. The respondent submits that the complainant was advised that the transfer would not affect his statutory rights in any way and his period of continuous employment would be unbroken. It also confirmed that the terms and conditions of his employment following the transfer would be as agreed with the complainant in consultation on 10 December 2021.

The respondent states that to reflect the fact that it was now the complainant’s employer, on 7 January 2022, the respondent issued him with updated terms and conditions. The respondent states that the complainant was informed that this was for administration purposes and asked to contact the respondent if there were any details missed out or if he had any questions regarding his terms and conditions. The respondent states that the complainant was asked to sign and return this document which he duly did on 7 February 2022.

The respondent states that the complainant has worked on this contract for approximately 20 years. It further states that there has been several successive relevant transfers under the Regulations which resulted in the complainant’s employer changing including:

·        Originally the work was completed in-house within the Bank

·        The contract transferred to Dell in 2016

·        The contract then transferred to NTT Data Services Ltd. In 2017

·        The contract recently transferred to the respondent on 1 February 2022

The respondent submits that the complainant continues to be employed on the same terms and conditions of employment that he was employed with the company immediately before the transfer. It states that there has been no change and/or diminution in his role.

It was submitted that the complainant alleges that for 10 years, he has always worked and been maintained, as a Wintel Engineer. The respondent states that this is not the complainant’s job title  which he agreed and signed as Senior Specialist when he transferred to the respondent. The respondent reiterates that the complainant is employed as Senior Specialist with it and not only a Specialist as he was described by the previous employer who graded him as Grade 8 in their structure. It was submitted that the complainant’s title is a Senior Specialist with the respondent’s structure; this is graded as Grade 3.

The respondent states that it was informed by the outgoing company that the complainant was doing desk-site services and that his team called themselves “the Wintel Team” but that this was a local designation referring to the fact that they did first level and second level desk site services and special projects onsite. The outgoing company informed the respondent that the complainant did not do the kind of server work associated with Wintel Engineers in their career architecture.

The respondent submits that while the complainant alleges that Wintel Engineers have their own DL, ServiceNow queue and change approval queue etc, evidence was given that this is not needed and the Bank have approved its decommissioning. It was submitted that the complainant now alleges that there is a distinction between himself who he describes as a Wintel Engineer and what the complainant describes as the Break/Fix Team. The respondent states that the complainant alleges that Wintel Engineers provided third level support team focusing on project work. However, the respondent states that its core contract does not include third level support and that the respondent only performs some higher level activities as added value to the Citi contract. The respondent submits that evidence was given that those value added activities are currently being carried out by the complainant until the issue is resolved. The respondent states that the complainant is the only engineer out of 60 engineers not doing any Break/Fix work.

The respondent states that it has spoken with the complainant to try and understand his issues. The complainant alleged that his role had been downgraded and that he raised this along all the transfers over the years. The respondent states that therefore, it is a historic issue. It was submitted that in support of his complaint, the complainant provided the respondent with a job specification “Wintel Desktop Engineer” which was a document originated and drafted by the Bank. The respondent maintains that it made enquiries with the Bank who informed it that this was an extremely old job specification and was at least 12 years old. The Bank also commented that some aspects of the role had been removed to other jurisdictions outside Ireland, some tasks had been automated over 12 years ago, some remained with the complainant and some were now fragmented to different teams. The respondent states that this job specification related to a role that may have existed previously and at the very least was 12 years old at the date of the transfer. There had been two other transfers of the complainant’s employment thereafter.

The respondent states that it also made enquiries with the previous employer who informed it that prior to the transfer that, in their structure, the complainant was a Field Tech Specialist as a Grade 8. The respondent denies any change to the complainant’s terms, conditions or status and accepts that over the period of time, the role has evolved.

The respondent states that it accepts that there is a legal duty to not derogate from employees pre-transfer terms and conditions of employment. The respondent submits that there has been no change and that the complainant continues to be employed on the same terms and conditions he was on immediately before the transfer.

In an effort to resolve the issue, the respondent states that the complainant was offered a job description that did not include Break/Fix or Request work and it requested him to confirm that he would accept that job description. The respondent states that this reflected the work that the complainant had been doing. However, the complainant declined this on the basis that “as there is  no mention of what my status is and has been for over 12 years. It would need to be outlined in the description”.  The respondent states that when it enquired what the complainant meant by “what my status is and has been”, the complainant responded stating “my third level status, Senior Analyst, Project Team.” The respondent states that it also offered the complainant a Team Leader role which he declined.

The respondent cites the caselaw in Tabberer and Others v Mears Ltd. UKEAT/0064/17 in support of its case. In that regard, it states that the role has not changed by virtue of the transfer but has evolved over time and what the complainant is attempting to do is rely on an outdated job description of Wintel which is not justified. The respondent asserts that any change related to the complainant’s activities is not a contractual change and is not a change by reason of the transfer.        

Regulation 4 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, S.I. 131/2003 states that:

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.

The issue for decision is whether or not the complainant was retained on less favourable terms and conditions of employment to those he had held while in the employment of his previous employer, following the transfer of his employment to the respondent.

I note that the respondent’s evidence at hearing was that prior to the transfer, in the previous employment with the outgoing contractor, the complainant was described as a “Field Tech Specialist, Grade 8” and there was no mention of Wintel. I note that the outgoing employer informed the respondent that the complainant held this position from at least June 2017, to the time of his transfer to the respondent on 1 February 2022.

I note the complainant’s testimony that he feels that his role has been downgraded and that the title of “Wintel Engineer” has a particular significance as he highlighted the point that if he went for interview for another role or a promotion that the title carries a certain prestige that is noted within the industry.  I am also cognisant from the evidence heard that the issue of the title of Wintel Engineer is a historic issue, in that, the complainant, at the hearing, stated that he has raised this issue along the various transfers over the years.

Having carefully examined all of the evidence in respect of the within claim, I consider that the complainant’s role has not changed by virtue of the transfer but has evolved over time and that any change relates to his activities and is not a contractual change.

I am satisfied that there has been no change to the complainant’s terms and conditions of contract. I find that the complainant continues to be employed on the same terms and conditions he was on immediately before the transfer. In those circumstances, I find that the respondent is not in breach of the Regulations.   

I find that the within complaint is not well-founded.

TUPE Regulations