Complainant

Respondent

Parties

Raymond  Darling

Allan Smith Cleaning Services Allan Smith

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-00033498-001

06/01/2020

The Complainant stated that his role was transferred to the Respondent on 2 January 2020 in accordance with the Protection of Employees on Transfer of Undertakings Regulations 2003 but that the Respondent refused to employ him.

The Complainant stated that he, along with his colleagues, received a letter dated 20 December 2019 advising them that their previous employer, GS Associates, had lost the contract to clean the site at Indaver, Carrenstown, Duleek and that their employment would be transferred under

TUPE legislation to the Respondent. Notwithstanding this, the Respondent refused to employ either him or his colleagues.

The Complainant further asserted that when he originally started on the Indaver site, he worked for a company, MCR Cleaning, prior to being transferred to GS Associates and stated that he should therefore have been transferred to the Respondent on this occasion.

Following the termination of the cleaning contract with the Complainant’s previous employer, GS Associates, the client site, Indaver, tendered for a new company to provide the cleaning services on the site and the Respondent was successful in being awarded the new contract.

The Respondent submitted that following the award of the new contract, it received an email on 11th December 2019 from the Complainant’s former employer stating that a transfer under the TUPE Regulations applied. The Respondent replied by email on 13th December 2019 stating that no such transfer was applicable.

The Respondent contended that a TUPE did not apply in this instance as the contract with the client had been terminated by the Complainant’s former employer and also made a legal submission highlighting that the factors to determine if a transfer of undertaking has taken place are established by the ECJ in Jozef Maria Antonius Spijkers v Gebroeders Benedik Abattoir CV and Alfred Benedik en Zonen BV C-24/85. The Respondent submitted that as the new contract was a second generation transfer, there was no requirement that the new service provider take over the employees from its predecessor.  The Respondent also referred to Ayse Süzen v Zehnacker Gebäudereinigung GmbH Krankenhausservice [1997] where the CJEU determined that the mere loss of a contract by the Complainant’s former employer does not amount to a transfer.

Regulation 3 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) states inter alia that

• (1) These Regulations shall apply to any transfer of an undertaking, business, or part of an undertaking or business from one employer to another employer as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger.
• (2) Subject to this Regulation, in these Regulations -“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.

Based on the evidence provided, I noted that the Complainant’s previous employment was terminated on 31st December 2019 after he was advised by his then employer that it had lost the cleaning contract at the client site at which he was working. When he sought to return to the site in January 2020, he was advised that he was not an employee of the Respondent, because no transfer had taken place, which he disputes.

The situation as to whether the Complainant’s employment should have transferred to the Respondent therefore depends on whether a transfer of undertakings arose in this case, and whether the Respondent subsequently failed to meet its obligations under the TUPE regulations (SI 131/2003) (the Regulations).

The question of whether there was a Transfer of Undertaking must be answered based on criterion including whether the undertaking has retained its identity after a change of entrepreneur.  With reference to the Jozef Maria Antonius Spijkers v Gebroeders Benedik Abattoir CV and Alfre Benedik en Zonen BV C-24/8, retention of identity is shown by making an overall assessment whereby a number of factors play a role, such as the type of the undertaking, whether tangible and/or intangible assets are transferred, whether a (substantial) part of the employees are transferred, whether or not customers are transferred, and the degree of similarity between the activities carried out before and after the transfer.

Having regard to Ayse Süzen v Zehnacker Gebäudereinigung GmbH Krankenhausservice [1977], the ECJ determined that the mere loss of a contract does not amount to a transfer and it does not necessarily follow that an economic entity is transferred just because the activities carried out by the new contractor were similar to those carried out by the old contractor. Specifically, the ECJ determined that other factors must also be considered, such as whether there was a transfer of significant tangible or intangible assets or a major part of the workforce was taken over.

In the within case, the date of termination of the contract on which the Complainant’s previous employer was engaged was 31st December 2019.  The client site had sought an alternative supplier through a tendering process and selected the Respondent. The Complainant had an expectation that his job would be transferred as his former employer advised him of this and he had previously transferred employer while engaged on the same site.

In reviewing the evidence, I am satisfied there was no transfer of significant assets or equipment, nor indeed did the Respondent take over a major part of the Complainant’s former employer’s workforce.  I therefore find that a transfer of undertakings as defined under Regulation 3 of the Regulations, and as determined by the case law referred to above, did not apply in this situation and that any employment obligations remained with the Complainant’s former employer. Specifically, I find that the Complainant’s former employer and not the Respondent had an obligation towards the Complainant’s employment as there was no transfer of the business under the TUPE regulations. 

I find that the complaint is not well founded for the reasons set out above.