The Regulations provide a right of complaint to the Workplace Relations Commission, by an employee or his or her trade union, where an employer has contravened their obligations to the employee under the Regulations
What does an employer, involved in a transfer situation under the Transfer of Undertakings Regulations have to discuss with employee representatives?
The employer must discuss details of any measures envisaged in relation to the employees with the employees’ representatives “with a view to reaching an agreement”. Where there are no representatives, the employers must arrange for the employees to choose representatives for this purpose.
Does an employer involved in a transfer situation under the Transfer of Undertakings Regulations have to consult with or give their employees any information?
Yes. Both the original and new employer must inform their respective employees’ representatives of the date of the transfer, the reasons for the transfer and the legal, social and economic implications of the transfer. This must be done, where reasonably practicable, not later than 30 days before the transfer date, and in any event in good time before the transfer is carried out (or in the case of the new employer, in good time before the employees are directly affected by the transfer regarding conditions of employment).
The obligations on the part of an employer, in a transfer situation, do not apply where the outgoing employer is subject to proceedings whereby he could be adjudicated bankrupt, or where a company could be wound up for reasons of insolvency, by order of the High Court.
No, an employee may not be dismissed by reason of the transfer of an undertaking.
If an employee’s contract of employment is terminated because a transfer involves a substantial change in working conditions to the detriment of the employee, the employer concerned is regarded as having been responsible for the termination.
However, dismissals for “economic technical or organisational reasons entailing changes in the workforce” are not prohibited.
Are all existing rights and obligations transferred from the original employer to the new employer under the Transfer of Undertakings Regulations?
No. The rule under the Regulations which acts to protect the contractual rights of employees in a transfer situation, does not apply in respect of employee’s rights to old age, invalidity or survivor’s benefits under supplementary company or inter-company pension schemes outside the Social Welfare Acts.
The Regulations provide that the rights and obligations of the original employer (“the transferor”) arising from an employment contract existing at the date of a transfer shall, by reason of such transfer, be transferred to the new employer (“the transferee”).
Also, the transferee must continue to observe the terms and conditions agreed in any collective agreement on the same terms as were applicable to the transferor under that agreement until the date of termination or expiry of the agreement or the entry into force of another collective agreement.
The European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 protects the contractual rights of employees in respect of their employment, in the event that the business or part of the business in which they are employed transfers to another employer.