Case Number: ADJ-00023614. Workplace Relations Commission

• Docket Number: ADJ-00023614
• Hearing Date: 12 February 2020
• Date: 02 June 2020
• Court: Workplace Relations Commission

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant commenced employment with the Transferor on 28th September 2016. A transfer of undertakings, within the meaning of Regulation 3 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, took place on 1st February 2019 when the business of the Transferor was taken over by the Transferee (the Respondent). The Complainant submits that the Transferee did not comply with the requirements regarding information and consultation pursuant to Regulation 8 in relation to her. The Complainant, who is Croatian, was diagnosed with breast cancer on 7th December 2018. She was made redundant by the Respondent on 18th August 2019 when the Respondent closed its Irish operation. The Complainant has submitted complaints of discrimination on the grounds of both race and disability in her conditions of employment. She has also submitted a complaint of discriminatory dismissal on the ground of disability.

CA-00029990-001, -003, 0005 Transfer of Undertakings Summary of Complainant’s Case:

The following is a summary of the Complainant’s submission: A transfer of undertakings, within the meaning of Regulation 3 of the 2003 Regulations, took place on 1st February 2019 when the business of the Transferor was taken over by the Transferee. The employees of the Transferor transferred to the Transferee and they remained in the same offices where they used the same tangible assets and intangible computer-based assets to perform their duties for the Transferee as they had done previously for the Transferor. The Deputy Director of the Transferee, convened an impromptu meeting of the Transferor’s staff on or about 7th November 2018. The Deputy Director told those present at the meeting that the employment contracts of only two of the Transferor’s staff members had transferred to the Transferee. Neither of the two staff members were present at that meeting. The Deputy Director did not, however, indicate in any way whatsoever to those present at the meeting on 7th November 2018 that their contracts of employment would also be affected by the transfer nor did he furnish the Complainant with details of any implications for her contract of employment. The Complainant had only just been made permanent with the Transferor at the end of September 2018. By email dated 5th February 2019, the Transferee’s Recruitment and Talent Manager first notified the Complainant that her employment contract had transferred from the Transferor to the Transferee on 1st February 2019. EH’s email prompted a telephone discussion that afternoon between the Complainant’s colleagues in Dublin and EH, who is based in the Transferee’s head office in another country. Following on from this telephone conversation, one of the Complainant’s colleagues in Dublin sent an email to HR on 5th February 2019 complaining that no staff member had been informed prior to 1st February 2019 that the transfer would take place on that date and he also complained about the lack of information given in terms of the employees whose contracts of employment would be affected as a result of the transfer. The Deputy Director replied to this email on 5th February 2019 and alleged that he had informed all affected employees in October 2018 of the need to move from the Transferor to the Transferee and that he had instructed the Complainant’s line manager to inform her and her colleagues about the date or proposed date of the transfer. The Deputy Director acknowledged in his email that that information had not been communicated to the Complainant and her colleagues, and he apologised for this. It is submitted that the Transferee’s apology of 5th February 2019 does not excuse or satisfy its breach of Regulation 8 of the 2003 Regulations.

Summary of Respondent’s Case:

The following is a summary of the Respondent’s position: On or about 31st October 2018, the Deputy Director held a meeting with all staff of the Transferor in the Dublin office, including the Complainant. The purpose and content of the meeting was to advise and inform the staff that all resources of the Transferor including staff would be transferring to the Transferee. During this meeting the staff raised no concerns or objections and they were informed that all terms and conditions of employment would transfer with them to the Transferee. In relation to each specific complaint, the Respondent submits as follows: CA-00029990-001 The Transferee did not inform employee representatives of certain details of the transfer A meeting was held with the staff of the Transferor including the Complainant, on or about 31st October 2018. At that meeting all staff, including the Complainant, were given the required information under the regulations. They were informed that all staff the Transferor would be moved to the Transferee. In addition, at this meeting staff were informed that there would be no changes to their terms and conditions. They were was advised that the expected date of the transfer would be the end of November 2018. Ultimately, however, the date turned out to be 1st February 2019. It is clear that the Respondent met with staff and complied with its obligations, under the regulations to inform the staff of the change and how it affected them. Ultimately there was no change to the Complainant’s terms and conditions of employment as a result of the transfer. CA-00029990-003 The Transferee did not consult in relation to the transfer Section 8 (4) of S.I. No.131/2003 European Communities (Protection of Employees on the Transfer of Undertakings) Regulations 2003 states: “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 an agreement”. The obligation to consult with the Complainant only arises in circumstances where either the Transferor or the Transferee prior to the transfer envisages “measures” in relation to the employees. While there no clear definition of “measures” in the regulations or in case law, the English EAT in Todd v Strain [2011] I.R.L.R. 11, held that “measures” included any action, step or arrangement including the pay arrangements whereby employees were paid earlier in the month. The Respondent envisaged no such “measures” in relation to the Complainant and as such the obligation to consult with the employees including the Complainant under Section 8 (4) of the regulations does not apply. CA-00029990-005 The Transferee did not advise in relation to the transfer The regulations are silent as to what is meant by “advise” and the current case law is also silent as to what the duty to advise requires. It is common practice, and the preferred approach of the judiciary in this jurisdiction, that where the legislation is silent as to the meaning or definition then each word should be given its ordinary common meaning. Advise is defined by the Oxford English Dictionary as: offer suggestions about the best course of action to someone. In the Cambridge Dictionary it is defined as: to give someone advice. It is clear from the regulations that the duty to consult only arises in situations where “measures” in relation to the employee are envisaged. Therefore, giving the ordinary meaning of the word, the obligation to advise, that is to say offer suggestions as to the best course of action only arises as it does with the duty to consult in situations where “measures” are envisaged in relation to the employee. The Respondent submits that it was not in a position to advise in relation to “measures”, in a situation where no such “measures” existed. The Respondent contends that, at all times it acted reasonably and responsibly toward its employees.

...