The complainant was found entitled to statutory redundancy as the business had ceased before new leaseholders took over, meaning no transfer of undertakings occurred.

The Complainant commenced employment with the Respondent in October 2018 as a permanent, full-time maintenance technician in the livestock farming business, earning an average weekly wage of €690. The Respondent had taken on the leasehold of the farm and the Complainant agreed that no prior service would count toward his employment. He worked for over five years until January 2023. Just prior, in late 2022, the Respondent sold off stock and the Complainant testified that he had little work to do, becoming concerned about his job. After his employment ended, he sought statutory redundancy. The Respondent suggested he could either apply for redundancy or seek work with new leaseholders but failed to respond to his RP77 claim. At hearing, the Respondent argued that he was not entitled to redundancy due to a transfer of undertakings (TUPE), but the Complainant denied this. He stated that the Respondent’s business had ceased before the new leaseholder took over, leaving a temporal gap. He also maintained that his new employment was under a different management structure, with no communication about any transfer of undertakings.

The Respondent attended the first hearing but failed to attend the resumed hearing. As they were on notice and neither sought an adjournment nor explained their absence, the decision proceeded.

The Adjudicating Officer noted the statutory test and the Spijkers criteria. They found the Respondent’s business had ceased entirely before a new leaseholder took over, with a temporal gap in operations. The Complainant’s new role was substantially different, under different management, with no recognition of continuity of service. Neither the Respondent nor the new employer treated the matter as a transfer, and no consultation occurred. On this basis, the Adjudicator determined there was no transfer of undertakings under the 2003 Regulations. Instead, the Complainant’s employment ended by redundancy. His appeal was upheld and he was found entitled to a statutory redundancy payment based on his service.

Employers should:

• Employers should recognise that the end of a lease / cessation of trading does not automatically shield them from redundancy liabilities. If a business ceases entirely before another operator begins, employees will usually be entitled to redundancy payments. Employers must plan in advance and ensure that staff are given clear communication about entitlements.
  
• Employers must comply with the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. This means consulting employees, ensuring continuity of terms and conditions, and clarifying whether roles will remain substantially the same. Failure to recognise or communicate a transfer undermines the validity of any defence(s).
  
• Accurate record-keeping and communication are crucial. Employers should avoid contradictory positions about redundancy or transfer and provide employees with written confirmation of the basis on which employment ends. Clear communication protects against disputes, reduces the risk of claims, and ensures compliance with statutory obligations.             
  

The full case can be found here.