Complainant

Respondent

Parties

Peter  Freeman

Nightsafe Security Service Limited t/a Active Security Management

Representatives

Thomas Ryan Peninsula

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-00042180-001

01/07/2020

The Complainant was employed as a security guard for twenty years at the Jameson site.

The Complainant says the MCR/SAR Group said there is a transfer of undertaking to the new employer. He was told to attend at the site in Jamestown on 1 July 2020 but the new company Active Security Management said his job was gone. The Complainant went back to MCR/SAR Group. He was out of work for one week. The Complainant was seven minutes walk from the site in Jamestown. MCR/SAR Group gave him a role in Beaumont Hospital at the same wage, but it took one hour by bus to get there and back.

During Covid-19 pandemic, the bus was often full and he had to get a taxi to work which cost €50. He asked MCR Group for work on a site in Finglas, and they said this would be given when available but it wasn’t. He thinks Active Security Management should have taken him on at the site in Jameson. He should have been given a role near to his house. He worked at the Jamestown site for ten years before MCR/SAR Group took over.  He says the huts transferred over to Active Security Management at the site.

The Respondent says the Complainant contends that he worked as a security officer for the SAR & MCR Group in the Jamestown Business Park from 28th May 2010. 

The tender for security services was won by Nightsafe Security Service Limited t/a Active Security Management with the provision that CCTV cameras would be installed, with a reduced workforce required on site from 1 July 2020.

SAR & MCR Group made contact with the Respondent contending there was a transfer of the employees within regulation 10 of the European Communities (Protection of employees on transfer of undertakings) Regulations 2003, which the Respondent disputed and said they would be responsible for their own staff. The MCR Group & SAR responded to say the transfer would take place and provided a list of 7 employees for the two sites but said only 5 would be transferring.

No employees transferred with the contract. It was a second generation transfer. The Complainant is unable to demonstrate they belong to an entity capable of maintaining its identity after the transfer and the claim must fail.

Article 3 (2) of Regulation 10 defines a “transfer” as “the transfer of an economic entity which retains its identity”. An “economic entity” is “an organised grouping of resources which has the objective of pursuing an economic activity whether or not that activity is for profit or whether it is central or ancillary to another economic or administrative entity”.

The Respondent relies on Spijkers v Gebroeders Benedik Abbatoir CV [1986] in which the ECJ said

“the decisive criterion for establishing whether there is a transfer for the purposes of the Directive is whether the business in question retains its identity”.

The Respondent relies on C-13/95 Suzen v Zehnacker Gebaudereinigung GmbH [1997] ECT l-467 subsequently applied by the Employment Appeals Tribunal in Cannon v Noonan Cleaning Limited [1998] ELR 225 and stated:

“ The ECJ held in the Suzen case that where a situation in which a person who has entrusted the cleaning of his premises to a first undertaking terminates his contract with the latter and, for the performance of similar work, enters into a new contract with a second undertaking, if there is no concomitant transfer from one undertaking to another of significant tangible or intangible assets or taking over by the new employer of a major part of the workforce in terms of their numbers or skill, assigned by his predecessor to the performance of the contract” then there is no transfer of undertaking. There is no doubt that in a service undertaking the workforce and its expertise constitute a major part of the undertaking but… where an employer refuses to take on the workers of the previous contractor he can escape the rigours of the Directive… It follows then that this transfer is not caught by the Directive as it does not constitute a transfer of undertaking”.

The Respondent relies on the ECJ judgement in C-173/96 Sanchez Hidalgo [1998] ECR I-8237 and Bidvest Noonan (ROI Limited v Martina Lynch TUD203. The SAR & MCR Group have not ceased to exist after the transfer and have in excess of 1,000 employees.

In the alternative, if the Adjudication Officer finds the Complainant was unfairly dismissed which is denied, it is incumbent on the Complainant to mitigate his loss in accordance with S7 (2) (c) of the Unfair Dismissals Act 1977 and to the standard set out in Sheehan v Continental Administration Co. Ltd (UD858/1999 that a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. The Respondent requests the Adjudication Officer to consider s7 of the Unfair Dismissals Act 1977.

I heard and considered the written submissions and oral evidence of the parties.

The Complainant alleges a breach of S10 of the European Communities (Protection of Employees on transfer of Undertakings) Regulations 2003.

The Complainant worked as a security officer on a site in Jamestown. On 1st July 2020 the contract appointing MCR Group to carry out the services concluded. A new contractor Active Security Management was appointed. MCR Group had employed eight staff to provide services on the site.  Active Security Management provided its own staff for the site and none of the former staff were taken on by the new contractor. Evidence has been provided by Active Security Management that there were no tangible or intangible assets transferred.

The European Communities (Protection of Employees on transfer of Undertakings) Regulations 2003 protects employee terms and conditions (other than pension, invalidity benefits) where there is a transfer of an undertaking, business or part of an undertaking from one employer to another employer.

Regulation 3(2) defines;

“transfer” “means the transfer of an economic entity which retains its identity”

“economic entity” “means an organised grouping of resources which has the objective of pursuing an economic activity whether or not that activity is for profit or whether it is central or ancillary to another economic or administrative entity”

In Spijkers v Gebroeders Benedik Abbatoir CV [1986] the European Court found:

“the decisive criterion for establishing whether there is a transfer for the purpose of the Directive is whether the business in question retains its identity”.

In C-13/95 Suzen v Zehnacker Gebaudereinigung GmbH [1997] ECT l-467 the European Court subsequently held:

“Article 1(1) of the Directive is to be interpreted as meaning that the Directive does not apply to a situation in which a person who had entrusted the cleaning of his premises to a first undertaking terminates his contract with the latter and, for the performance of similar work, enters into a new contract with a second undertaking, if there is no concomitant transfer from one undertaking to the other of significant tangible or intangible assets or taking over by the new employer of a major part of the workforce, in terms of their numbers or skills, assigned by his predecessor to the performance of the contract”.

This was followed by the Employment Appeals Tribunal in Cannon v Noonan Cleaning Limited and CPS Cleaning Services Limited [1998] ELR 153.

The MCR/SAR Group continues to have a substantial business and offered four staff alternative roles. I find the loss of one security contract affecting eight employees on a second generation transfer was not a transfer of an “economic entity” which must be an organised grouping of resources which has the objective of pursuing an economic activity. There was no transfer of undertaking within the meaning of Article 1 (1) of the European Communities (Protection of Employees on transfer of Undertakings) Regulations 2003 and the claim of breach of S10 of the Regulations is not well founded.

There was no transfer of undertaking within the meaning of Article 1 (1) of the European Communities (Protection of Employees on transfer of Undertakings) Regulations 2003 and the claim of breach of S10 of the Regulations is not well founded.

Transfer of undertakings, second generation transfer