Employment Law and Transfer of Undertakings TUPE
Whenever a company is in the process of merging with another company the issue of Employees arises. Basically, what happens with the existing Employees? This is never as straightforward as it seems! At its most basic under TUPE Law the Employees are to be transferred with all their existing rights and benefits to the new company. Our laws on this have come from European Directives. Essentially, this is a good example of European Law taking primacy over our Irish Laws to the betterment of Irish Employees.
These are always complicated cases and the outcome will turn on its facts. It is never cut and dry. For instance, what if the Employee does not want to transfer to the new company? Does he or she have to? Can he or she claim Redundancy?
The Employment Appeals Tribunal have decided in the case of Lyons and Leddy versus Symantec that an Employee who objected to transferring to a new employer was entitled to claim a Redundancy payment from the transferor Employer i.e. the company that was transferring its Employees. However, this was appealed to the High Court ( this can only be ever done on a point of law). Mr Justice Edwards decided that that the refusal of an Employee to transfer does not result in the Employee being made redundant!
Ok, so that’s the law. Is that what happens in practice? Not necessarily. As I said, every case turns on its facts and the people involved. A company make take a different view after some persuasion! We have convinced companies to make the redundancy payments where this is what the Employees wanted. Its not without difficulty due to its complexity but it can pay off handsomely for the Employee.
Shane Healy, Head of Employment, Commercial and Insolvency, Healy O’Connor Solicitors, Cork.