Complainant

Respondent

Parties

Noel  Farrell

Bidvest Noon (ROI) Ltd.

Representatives

Michael Kingsley, BL instructed by Gary Lee Ballymun Law Centre

Hugh Hegarty Management Support Services (Ireland) Ltd

Act

Complaint/Dispute 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-00033959-001

23/01/2020

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-00033959-002

23/01/2020

The Complainant commenced employment with the Respondent company in November 2009 as a Carpark Attendant.  The business was transferred to another company in 2017 and then to the current Respondent in August 2019 under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003, with the resultant transfer of the Complainant’s employment in accordance with the 2003 Regulations. The Complainant submitted two complaints as follows:

CA- 00033959 001: The Complainant alleged that the Respondent did not ensure that his terms and conditions transferred from his previous employer

CA- 00033959-002: The Complainant alleged that his previous employer (Transferor) did not ensure that his terms and conditions transferred to his new employer.

The Respondent is a provider of support services.  The Respondent denied the allegations and confirmed their position that the change to the Complainant’s role was done at the behest of their client and in line with his terms and conditions of employment; and that in that context no breach had occurred.

CA- 00033959-001

The Complainant submitted that he commenced work with his initial employer in November 2009 as a Carpark Attendant and was assigned to a specific college campus. He submitted that his contract of employment made clear that he was employed as a “Parking Host”, and he provided a copy of said contract of employment.

In 2017, his employment transferred to another company following the transfer of the business.  He submitted that this was a transfer within the meaning of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, and he provided a copy of the letter of transfer.

On 4th August 2019, his employment transferred again to the Respondent in accordance with the 2003 Regulations and he provided a copy of the letter of transfer.  The Complainant submitted that despite the clear terms of his contract, which had transferred to the Respondent in 2019, the Respondent insisted that he take up duties of a security guard.  He submitted that he had worked as a security guard prior to the commencement of his employment with the company in 2009 and that he was subject to an event which had caused him severe distress and which meant that, he could not, for health reasons, carry out the duties of a security guard. 

He further submitted that he did not carry out the duties of a security guard for either of the previous two companies when they had owned the business. He submitted that prior to the transfer of his employment to the Respondent, and since the commencement of his original employment in 2009, his duties as “Parking Host” consisted of being stationed in a hut, allowing cars to enter and exit the premises and he submitted that during that time there was also a security guard on site whom he would contact if a security issue arose. In his submission, he stated that when his employment transferred to the Respondent, he was expected to attend at the hut for an hour and a half and for the remainder of his time he was required to patrol the school building, providing security.

The Complainant submitted that the role of security guard is completely different to that for which he was employed under his contract of employment, and he pointed out that it requires a licence from the PSA, which he did not possess.  He submitted that as a result of the impact on him of the change of role, and particularly in light of the difficulties experienced by him in the past, he was certified off work for illness from 26th August 2019.

In his submission, the Complainant advised that his solicitor had written to the Respondent by letter dated 11th October 2019, calling on the Respondent to comply with its obligations under the 2003 regulations and requesting that the Complainant be allowed to carry out the duties for which he was employed, and further requesting that the Respondent desist from attempting to alter the Complainant’s terms and conditions of employment.  The Complainant outlined that the Respondent responded, stating that it was entitled to vary the Complainant’s terms and conditions of employment.  Copies of relevant correspondences were appended to the submission.

The Complainant submitted that, thereafter, in November 2019, he was called to a meeting with his employer, which he attended, and at which his continuing absence was discussed.  He submitted that in that meeting he informed the Respondent that he may be able to return to work if his terms and conditions of employment were observed, however, he submitted that the Respondent refused to do so.  He appended a copy of the notes of the meeting.  He submitted that he remained out of work, owing to the failure of the Respondent to observe the terms and conditions of his contract of employment.

The Law

The Complainant, in his submission drew attention to the definition of a transfer as set out in the Regulations which provides that “…”transfer” means the transfer of an economic entity which retains its identity” and pointed out that in the instant case, there was a transfer of an economic entity to the Respondent in July 2019 which retained its identity and that furthermore, there was correspondence between the parties that “a transfer for the purposes of the 2003 regulations took place in 2003.”

The Complainant referenced the following as relevant to the instant case:

·         Regulation 4(1) of the Regulations which provides “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.”

·         Article 3 of Directive 2001/23/EC which states that “The transferor’s rights and obligations arising from a contract of employment or from an employment relationship existing on the date of transfer shall, by reason of such transfer, be transferred to the transferee.”

·         Mitie Managed Services Ltd. V French [2002] ICR 1395 which stated that “the rights and obligations that transfer with an employee are made up, not only of those obligations that arise from the contract of employment but from the wider circumstances of the “employment relationship”.

The Complainant also referenced Regulation 9 of the 2003 Regulations which provides that “A provision in any agreement shall be void in so far as it purports to excluded or limit the application of any provision of these Regulations or is inconsistent with any provision of these Regulations.”  The Complainant submitted that therefore, the Regulations prohibit any contracting out of the obligations provided for in the Regulations and that a plain reading of the Complainant’s contract of employment indicates that he was engaged by the Transferor as a Parking Host.  The Complainant submitted that the terms and conditions of his contract of employment amounted to tasks including the operation of a parking hut.

The Complainant further submitted that the Respondent had a responsibility as Transferee to observe the obligations which were owed to the Complainant by the Transferor and was obliged to observe the Complainant’s terms and conditions of employment.  The Complainant submitted that the Respondent was attempting to impose an obligation on the Complainant, following the transfer, to undertake duties of a security guard and submitted that these duties were not duties within the terms and conditions of the Complainant’s contract of employment prior to the transfer and were, in fact, duties carried out by another employee who worked on the same premises as the Complainant.

In his submission, the Complainant stated that the terms of the Complainant’s contract did not entitle the Respondent to ask the Complainant to perform tasks which were never contemplated by his contract of employment and which the Complainant was not, in fact, legally qualified to perform.  The Complainant drew specific attention to the assurance in his contract of employment which stated that he will “not be assigned duties, which you cannot reasonably perform.”  The Complainant submitted that the fact that the Complainant had not undertaken these duties for his previous employer, and the fact that he was not licenced to perform those duties, rendered them as duties which he could not reasonably be expected to perform. 

The Complainant further submitted that in the context of Article 3 of Directive 2001/23/EC and the obligation to observe the rights and obligations of the entire “employment relationship” that this provides a wider test than that set out in the 2003 Regulations and encompasses any practice whereby the Complainant was not expected to undertake security duties. The Complainant submitted that insofar as it was claimed by the Respondent that the Complainant was informed of the changes to his terms and conditions of employment before the date of the transfer, in accordance with the provisions of Regulation of the 2003 Regulations, a transferor is obliged to inform an employee of the effect of the transfer.  The Complainant submitted that this obligation does not affect the obligation of the transferee to observe entitlements of the employee concerned and that it would completely undermine the purpose of the 2003 Regulations to allow a transferee to avoid the terms of the 2003 Regulations simply by providing prior warning to the employee concerned regarding the intended breach.

The Complainant submitted that insofar as the Respondent claimed that the Complainant could simply have decided not to transfer to the transferee, having been informed of the transferee’s intention not to observe its obligations under the 2003 Regulations, the Complainant submitted that this was not in fact the effect of the provisions of the 2003 Regulations nor the EC Directive from which it arises.  The Complainant drew attention to the case of Symantec Ltd. V Lyons [2010] 1I.L.R.M 112 where the High Court confirmed that it was not an option for an employee to simply remain with the transferor and that as a matter of law, the employee’s employment transfers at the point of the transfer, regardless of the employee’s wishes, and so while an employee can decide not to transfer, this does not entitle an employee to remain in the employment of the transferor.  The Complainant submitted that similarly, the existence of this choice on the part of an employee does not allow a transferee to make the transfer of the employee’s employment conditional upon acceptance of any terms outside the existing contractual obligations. 

The Complainant submitted that insofar as it was claimed by the Respondent that the Complainant had agreed to the variation of his terms of employment, the provisions of Regulation 9 of the 2003 Regulations prohibit any such agreement and any such agreement is void.

In light of the above the Complainant submitted that the Transferee had acted in breach of the Complainant’s entitlements under the 2003 Regulations.

At hearing the Complainant Representative outlined the details of their submission and drew particular attention to the fact that the Complainant could not have carried out the duties of a security officer as it did not fall within his existing qualifications and outlined the statutory requirement for a licence to undertake such a role.  He stated that in order to address the Clients requirements it was open to the Respondent to consider a redundancy situation or to take on additional staff but that the Respondent had opted to alter the terms and conditions of the Complainant.  He pointed out that in accordance with Regulation 9 an employee cannot “agree away” their entitlement and that such an agreement was not enforceable.  He referred to the Respondent argument that there was a clause in the Complainant’s original contract which provided for variation, and he stated that there was ample case law to demonstrate that such a clause was not open ended and required consideration of the extent of the variation proposed.

Complainant evidence

The Complainant confirmed the dates of his employment and that he had undertaken duties associated with a carpark attendant throughout his employment with the two previous employers, prior to transfer to the Respondent.  He confirmed that this involved him being located in the carpark hut, giving access and egress to carpark users, manning the barriers and doing so during normal school hours, as well as for parent meetings.  He advised that over a ten-year period he had never done security work and was only responsible for his own security, and that he had only been in the schoolbuilding on one occasion during that time.

The Complainant outlined that, while working for a different employer, while in his 20’s he worked as a security guard.  He described how in that role he had been attacked by a group of youths and that it was only when he got away and ran into a nearby shop that they walked away.  He described how he was a “nervous wreck” after the incident and that he had explained this situation to the Respondent.  He clarified that he had undertaken 5 shifts, that he had to do those duties as he had bills to pay but he stated that he was overwhelmed with anxiety carrying out the role.  In response to the Adjudicator, he confirmed that he had undertaken security duties during those shifts and that he did not have the required licence.  He further confirmed that the Respondent was aware that he did not have the licence.

The Complainant outlined the content of his contract of employment and the various correspondences relating to the two transfers.  He advised that approximately three weeks prior to the transfer the Respondent Manager (Adrian) explained to him and two other colleagues about the transfer and advised that there would be “no real change.”  He stated that the next contact he had from the Respondent was in August 2019, as the Respondent was taking over the business and another manager, Mr. M was on site for a few days.  He stated that Mr. M advised him of the proposed change, that he would have to do security work in the school from 3 pm onwards each day.  He advised that he would be required to let people into the school, lock up the school, as well as patrol the school and car park.  He confirmed that he advised Mr. M of his concerns and the reason for those concerns, and he stated that after that discussion Mr. M had a different attitude towards him.

The Complainant described an incident that then occurred on a Tuesday night while he was on shift.  He stated that a local voluntary group were using the premises and that he recognised some members of the public who attended to meet the group.  He advised that he had concern regarding a particular individual who was known to be dangerous and that he brought his concern to the attention of a member of the group.  He advised that he became very nervous after that evening and that he couldn’t sleep and so he attended his GP. He confirmed that his GP placed him on sick leave. 

The Complainant confirmed that he had only worked 5 shifts when this occurred, and he advised that his solicitor wrote to the Respondent requesting that his terms and conditions be maintained.  He advised that he had hoped this would have been accepted and that he could return to work.  The Complainant read the contents of the letter into the record.  He confirmed that the Respondent replied on 5th November and did not accede to that request.

The Complainant further advised that he was then called to a welfare meeting with Mr. M and at that meeting he was asked if he would be prepared to attend the Respondent doctor.  He confirmed that he agreed to do so but that he was never contacted about any arrangement thereafter. 

The Complainant confirmed that he never received any offer to restore him to his previous position, that he remained out of work on sick leave and that he did not receive sick pay.  He advised that there was no longer a carpark attendant with the company, that he had loved his job and that life was no longer the same as a result of the changes that were imposed.

Cross-examination of the Complainant 

It was put to the Complainant that his doctor had not specified the reasons for his absence when providing a medical certificate for his absence.  The Complainant responded that his GP considered it a private matter and that what he put on all certificates was “illness”.  It was put to the Complainant that he had not advised the Respondent about the previous incident, and he responded that he had “definitely told” Mr. M about the previous incident and he stated that Mr. M had told him about a similar incident that he had encountered in a nightclub.  The Complainant was asked if he had ever put in writing his concerns about the previous incident and he stated that he was not good at writing.

It was also put to the Complainant that Mr. M had said he was co-operative in relation to the proposed security duties, to which the Complainant responded that he needed to sign the document in order to get paid.  He confirmed that every time he did a shift he advised Mr. M that security was not for him. It was put to the Complainant that he didn’t tell Mr. M why that was the case and he responded that he had advised Mr. M at the start and that Mr. M had said to him that he “took things very personally.”  He stated that 3 staff had approached Mr. M but that he explained there was nothing he could do, that at the outset he had been advised that he didn’t have to transfer but that the Transferor did not have any roles for carpark attendant.  He stated that although he was unhappy with the proposal, he had no options.

Closing submission

In closing submission, the Complainant Representative outlined that the Complainant was asked to take on the role of security guard after the transfer, that prior to the transfer the Complainant worked as a carpark attendant on the Client site and that while in that role he had no duties relating to security of the carpark or the school.  He confirmed that in 2017 the Complainant’s employment had transferred to the second employer and that in 2019 his employment had again transferred to the Respondent.  He further confirmed that the Complainant had an “outside” role but that there was a “variation” clause in his contract and that this was relied upon by the Respondent in assigning him, what the Respondent described as, an “expanded” role.  He stated that the contract also contained provision for consultation in relation to any change of duty and an undertaking that the Complainant would “not be assigned duties, which you cannot reasonably perform.”  The Complainant Representative pointed to that provision and the requirement to have a PSA licence to work as a security guard.  He submitted that this requirement demonstrated that there was a prima facia breach of the law.

The Complainant Representative outlined the incident that occurred, where the Complainant was trapped in a premises in the past, which the Complainant found emotionally distressful and stressful, and he stated that the Complainant had objected at all times to the proposed changes.  He stated that the Complainant had expressed his absolute concern at the duties assigned to him, particularly when there was an incident while on shift with the Respondent in the new role. 

He reminded the hearing that a transfer occurs by operation of law and that it cannot be a defence to simply say that if an employee transfers, there will be new terms and conditions assigned. He stated that it was not for the employee to agree or disagree to take on new duties, that the regulations were clear, that the terms and conditions attaching to the employee at the time of the transfer were protected in the transfer.  He pointed out that the Complainant could not stay with the previous employer, as they had no role available and that it was disingenuous to suggest that such an option existed.  He stated that the Complainant had no control in those circumstances, and he had no job.  He stated that the Respondent had not explored any alternatives in providing the service required by the client.

In terms of redress the Complainant Representative pointed out that the Complainant had suffered significant stress as a result of the events described and had been off work for two years without pay.  The Complainant sought compensation for the aforementioned.

CA- 00033959-002

This complaint was a duplicate of the above complaint, (CA-00033959-001) and no further issues were contained within the submission, nor were they outlined at hearing.

CA- 00033959-001

Preliminary matter:

In their submission the Respondent confirmed that the legal name for the company had changed to Bidvest Noon (ROI) Limited and confirmed that fact at hearing.

The Respondent Case:

The Respondent submitted that, in summary, the Complainant’s case was that following a transfer of undertakings the Respondent changed his terms and conditions of employment, specifically the role of the Complainant from car park attendant to security guard and that it was the Respondent position that the change in the Complainant’s role was solely done at the behest of their client and was done in line with his terms and conditions of employment, and as such, no breach of the regulation occurred.

The Respondent submitted that the Complainant began his employment on 1st December 2009 with a previous owner of the company and that through a series of transfers, the Complainant transferred to the Respondent company on 6th august 2019.  The Respondent submitted that at that time the Complainant was employed as a carpark attendant, employed 24 hours per week, and paid €11.65 per hour or €279.60 per week.

The Respondent submitted that very shortly before the transfer the client contacted the Respondent and requested that the role for which the contract was tendered and awarded needed to be changed.  The Client no longer wished to have parking hosts attending to their car park, but what they now wanted was a security presence on site.  The Respondent submitted that, as a result, they contacted the employees, including the Complainant, and informed them of the clients request for a change of service.  The Respondent submitted that the Complainant was informed that the change would require him to obtain a PSA licence and that all costs associated with obtaining the licence would be paid by the Respondent.  The Respondent further submitted that the Complainant was also advised that should he not wish to obtain a PSA licence he had the option of remaining with the previous employer.  The Respondent also noted, in their submission, that the Complainant was also informed that the previous employer had no other sites available at that time.  The Respondent submitted that the Complainant then decided to transfer into the Respondent company, knowing that such a transfer would mean that he would need to obtain a PSA licence.  The Respondent submitted that the Complainant worked for the Respondent for 5 shifts and then contacted the Respondent to inform them that he was unfit for work.  At the date of the hearing that remained the situation.

The Respondent submitted that the Complainant was invited to attend a welfare meeting in or around November 2019, following receipt of correspondence from the Complainant’s solicitor and that ultimately, on 23rd January 2020 the Complainant lodged his complaint with the Workplace Relations Commission.

The Law

In his submission, the Respondent stated that the Complainant’s position was that his terms and conditions of employment did not transfer to his new employer, that he alleged that his role was changed from that of carpark attendant to a security officer.  In response the Respondent submitted that all terms and conditions associated with the Complainant’s employment were protected and transferred with him in accordance with Regulation 4 of the European Communities Transfer of Undertakings Regulations 2003.  In addition, the Respondent submitted that those terms and conditions allowed for a change in the position to expand the duties of change function and that while it was not admitted that a change to the Complainant’s terms and conditions of employment had occurred, if such a change did occur, it was done through agreement.

The Respondent drew attention to Section 4 of the Regulations and specifically in relation to subsection 1 noted that an employee’s rights as set out in their contract (Terms and Conditions) of employment will on the date of a TUPE transfer from the outgoing employer (Transferor) to the incoming employer (Transferee).  The Respondent submitted that in the instant case the Complainant’s terms and conditions of employment stated that “you are employed as a parking Host and report to your senior Parking Host/manager.  Your duties are summarised in the attached Parking Host Profile document.  In addition, you will be expected to perform all other acts, duties and obligations reasonably consistent with your function.  In the course of your employment …. It may be necessary to expand your duties within the general scope of your position or change your function.  The Company will make every effort to consult with you prior to any variation in your duties, however, the Company reserves the right to assign other duties to you at any time it being understood that you will not be assigned duties, which you cannot reasonably perform.”  The Respondent submitted that, in the context of this provision in the contract of employment, if there was a change I the terms of employment, then that change was done with the consent of the Complainant, and within his terms of employment.

In conclusion, the Respondent submitted that the terms and conditions of employment of the Complainant transferred to the Respondent on the date of transfer in accordance with the regulations, and that, not only did his terms and conditions not change, during the consultation process, the Complainant was advised that the client had altered the role for the position and the parking attendant duties would be expanded to include a security function, consisting of conducting patrols.  The Respondent further submitted that it is not the intention or the function of the Transfer Regulations to protect the role or working habits of any particular employment and that in this case the terms of employment specifically allowed for this change and expansion of the role and so the Respondent acted within the terms of employment and, as such, there was no breach of the transfer regulations.

Evidence – Mr. M

Mr. M confirmed that as part of his role as Operations Manager he visited various sites where the Respondent provided services and he confirmed that he was asked to attend the site in which the Complainant worked when the Respondent was competing for the tender.  He confirmed that the Respondent won the contract in June 2019, with a start date of August 2019 and that he spoke to relevant staff and advised them that the role of carpark attendant no longer existed.

In response to questions from his own Representative he confirmed that the Complainant did not object to the proposal.  In response to the question asking if the Complainant had ever told him about the reason why he did not want to do security work, he stated that the Complainant had said “nothing, as far as he could recall.”  He also confirmed with certainty that the Complainant had never advised him that he was stressed. He further confirmed that when the Complainant went out on sick leave, he did advise that he did not want to do security.

In response to question relating to his response to the Complainant’s position regarding doing security work Mr. M stated that he had explained again the background to the change and had confirmed that he was being asked to cover reviewing cameras, dealing with reception queries, carrying out patrols in the evening and locking up the building.  He confirmed that there was a change in the role, that it had been made clear prior to the transfer, that the Complainant had accepted the change and the pay increase associated with the change.  He advised that there was an established rate of pay for security officers and that this had been applied to the Complainant on foot of him accepting the revised role.

Cross-examination of Mr. M

The Complainant’s Representative asked Mr. M what would have happened if the Complainant had not signed the revised terms and conditions, to which Mr. M responded that “it would have gone a different way”.  He was then asked in what way it would have been different, to which he responded that he “would have had to talk to (the Transferor) and the Respondent would have had to employ someone else.  He further responded to say that the Respondent would have had to consult.

The Complainant Representative asked Mr. M if he accepted that TUPE applied in this situation and Mr. M confirmed that it did apply.  It was put to Mr. M that there was no opportunity to go back to the Transferor, that they had no job, which was why the Complainant had no option but to transfer.  Mr. M responded that “it never got to that juncture.”

It was put to Mr. M that after the transfer the Complainant was subjected to “quite the change” but Mr. M did not accept that position.  It was put to Mr. M that the Complainant, on pain or prosecution was required to hold a licence and that in that context, he was asked to assume a role as a “new category of worker”.  Mr. M did not accept that position.

The Complainant Representative asked Mr. M to confirm what he understood as the purpose of consultation in relation to a transfer and Mr. M advised that it was to ensure that employees understood their current role and to be clear and concise on what the Transferee was offering.  It was put to Mr. M that there was no scope for negotiation within the process and Mr. M stated that he could not recall the detail of the discussion back to 2019, he stated that he honestly could not remember.

It was put to Mr. M that the solicitor had advised the Respondent back in 2019 that the Complainant had a problem, and that he had been made aware long before.  Mr. M stated that he was aware that the Complainant wasn’t well and that he didn’t want to do the security duties.  It was put to Mr. M that the Complainant had made plain that the duties were the cause of him being unwell.  Mr. M replied that yes, he had but that he never provided any letter from a doctor to confirm that position.

In response to questions from the Adjudication Officer Mr. M confirmed that he was aware that the Complainant had commenced undertaking the security duties without the PSA licence.

In response to questions from the Respondent Representative clarifying if the Complainant had ever said that the duties were the cause of his illness or if he had alluded to it at the November meeting Mr. M replied that “he didn’t say it directly”.

Closing submission

The Respondent Representative stated that he had heard no evidence that the Complainant was out of work due to the transfer and that there were no medical certificates indicating anything other than “illness” as the cause of his absence.  He submitted that the Respondent had the right to change the function based on the relevant clause in the Complainant’s contract and that, as the new employer, the Respondent simply exercised that right.  He further submitted that the Complainant had not demonstrated any loss due to the transfer as he had been absent from work due to illness.

CA- 00033959-002

This complaint was a duplicate of the above complaint, (CA-00033959-001) and no further issues were contained within the submission, nor were they outlined at hearing.

CA- 00033959-001

I considered carefully the oral and written submissions from both parties and all supporting documentation provided by the parties, as well as the sworn evidence of the witnesses. 

It is common case that

·         The Complainant’s employment transferred to the Respondent in August 2019 as part of the transfer of the business from the Transferor to the Respondent (Transferee)

·         Prior to that transfer the Complainant worked as a Carpark Attendant, based at the carpark hut and engaged in “outside” duties only

·         Prior to the transfer it was brought to the attention of the Complainant that the client required a change in the service provided and this would result in the Complainant being required to take on security duties on the client site

·         The Transferor did not have work as a carpark attendant available at that time

·         The Complainant was paid enhanced remuneration for taking on the role of security guard, in line with industry norms and worked a total of 5 shifts for the Transferee.

Section 8 (3) states 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 agreement.”

It is the Respondent position that they did consult with the Complainant in relation to the proposed changes and that they did secure his agreement.  While the Respondent did advise the Complainant of the proposed change prior to the transfer, it is clear to me from the evidence given under oath by Mr. M, that the Respondent relied upon the variation clause in the Complainant’s contract to emphasise the right of the Respondent to advance such a change.  It is also clear from Mr. M’s evidence that the alternative proposed to the Complainant was to remain in employment with the Transferor and it is clear that the Transferor had no work available. 

TUPE Regulations provide that when a business or part of a business is being transferred, the employees who attach to that business transfer with the business. Not only do the employees transfer, but they also transfer with their accrued service and with their existing terms and conditions of employment intact.  In the case of Symantec Ltd v Leddy & Lyons the High Court held that the employee’s objection to transfer does not negate the transfer and the purpose of the Council Directive 2001/23/EC and the 2003 Regulations is not to continue the employee’s contract with the Transferor when employees refuse to transfer.  The Court further found that an employee who refuses to transfer cannot sustain a claim for Unfair Dismissal against the Transferor but instead terminates his/her own employment. 

In this context, it is evident that the consultation process afforded to the Complainant provided him with an option of taking on the new duties or staying with the Transferor, who had no work for him.  Effectively this offered him the option of terminating his own employment.  I do not consider that the actions of the Respondent in this regard meet the standard that is required for compliance with this provision.

I noted that the Respondent relied upon the variation clause in the contract, essentially arguing that the clause, which was part of the terms and conditions that applied at the time of the transfer, provided scope for the new employer to expand the duties.  I noted also, the position outlined by the Complainant, that the variation clause ought to be considered in light of the clear provision in the contract to consult on such change and an undertaking that the Complainant would “not be assigned duties, which you cannot reasonably perform.”  In considering this matter I noted the evidence of Mr. M where he acknowledged that he was aware that the Complainant did not have the required licence to carry out the role, together with his evidence that he was aware that the Complainant had carried out the role for 5 shifts without the legally required licence.  I also considered the evidence of the Complainant and Mr. M in relation to the extent of the change of duties following transfer.

I am persuaded by the Complainant argument that the duties were significantly altered after the transfer to the extent, in my view, as to be completely different roles.  The role prior to transfer was clearly a carpark attendant, based at the carpark hut, allowing vehicles to enter and leave the carpark.  The role post transfer continued to have carpark duties but in addition the Complainant was required to undertake reception duties, patrol duties and monitoring of CCTV, as well as lock up duties.  I noted that in order to carry out those duties the Complainant required a PSA licence, which he did not possess, and I noted that the Complainant was put to work carrying out those duties immediately after the transfer, without having attained the required licence.  I noted that he did not require such a qualification for the role he held prior to transfer.

Taking all the above into account I consider that the variation clause in the Complainant contract did not provide the Respondent with the scope to expand the Complainant’s role to such an extent as to fundamentally alter the terms and conditions of employment. I consider that the Respondent acted irresponsibly in requiring the Complainant to undertake security duties, without the requisite licence and in all the circumstance, I consider that the Respondent did not ensure that the Complainant’s terms and conditions transferred from his previous employer (the Transferor).  In these circumstances I find that the Respondent was in breach of the legislation and that the complaint is well founded.

Redress

 Section 10(5) of the Regulations provides redress options available to an adjudication officer and Section 10(5)(c) states that an Adjudication officer may “require the employer to pay to the employee compensation of such amount (if any) as in the opinion….is just and equitable in the circumstances”.  Section 10(5)(c)(ii) provides that such compensation shall not exceed “2 years remuneration”.   The Complainant was not in employment for more than 2 years following the events described and suffered significant financial loss as a consequence. I consider the amount of €13,000 to be just and equitable in the circumstances of this case.

CA- 00033959-002

This complaint was a duplicate of the above complaint, (CA-00033959-001) and no further issues were contained within the submission, nor were they outlined at hearing. In these circumstances I make no further findings in this matter.

CA- 00033959-001

I decide that this complaint was well founded, and that the Respondent shall pay to the Complainant redress of €13,000 as compensation.

CA- 00033959-002

This complaint was a duplicate of the above complaint, (CA-00033959-001) and no further issues were contained within the submission, nor were they outlined at hearing. In that context there is no further decision arising.

Transfer of undertaking, change of duties