Late TUPE notification and unpaid annual leave resulted in employer liability.

The Complainant said she had worked as a kitchen porter from October 2023 and earned €322.40 gross per week. She stated that the business transferred in late April 2025, but she had not been consulted or informed in advance. At the transfer date, she said she had accrued three weeks’ annual leave which had neither been taken nor paid. She denied receiving the Respondent’s letter dated mid-May 2025 and rejected the assertion that her holiday pay had been discharged through the incoming operators. Her evidence was that no consultation had occurred, no proper written information had been provided before the transfer, and no payment had been made for the outstanding leave. She therefore alleged breaches of the Transfer of Undertakings Regulations and the Organisation of Working Time Act. She attended both WRC hearings, gave evidence under oath and maintained that the statutory entitlements remained outstanding and unpaid thereafter.

The Respondent did not attend either hearing, although the Adjudication Officer was satisfied that it had received notice. In correspondence sent to the WRC, a company director asserted that all holiday pay and employee entitlements due in April 2025 had been paid. The Respondent said its accountant had completed the relevant financial transaction through the incoming operators. It relied on a letter dated May 2025 which apologised for the late notification of the transfer and stated that negotiations had continued until the last minute. That letter said employees’ rights and entitlements were protected by law and that the new operator was responsible under TUPE. It also stated that arrangements had been made to transfer accrued holiday pay to the incoming operator, who would pay employees when requested. The Respondent therefore maintained, through its written communications, that the Complainant’s holiday entitlement had been preserved and fully financially provided for.

The Adjudicating Officer upheld both complaints. On the transfer claim, the Complainant’s evidence that she had not been informed or consulted was uncontested. Although the Respondent produced a letter, its own terms admitted that notification had been late because negotiations continued until the last minute. The statutory information had therefore not been provided in good time before the transfer, amounting to a serious breach of Regulation 8. Compensation of €1,289.60, equivalent to four weeks’ pay, was awarded. On annual leave, the Complainant established that three weeks remained outstanding from the leave year ending March 2025. There was no evidence that she had consented to carrying that leave forward. Passing money to the incoming operator did not discharge the Respondent’s obligation to grant or pay the statutory entitlement. The breach required effective and deterrent redress, and compensation of €1,500 was awarded. Both awards were unrelated to earnings or wage loss.

1. Ensure any business transfer identifies employees early and complies with Regulation 8. Where no employee representatives exist, each employee should receive written information (where practicable, at least 30 days before the transfer and otherwise in good time). The notice should address the transfer date, reasons, legal and economic implications, and any proposed measures. Late commercial negotiations will not excuse non-compliance.
2. Not assume that accrued annual leave liabilities can simply be passed to an incoming operator. Any agreement between transferor and transferee should allocate liability, but private arrangements should not leave employees uncertain or unpaid.
3. Attend WRC hearings and produce where required payroll records, leave calculations, consultation notices, and transfer documentation.

The full case can be found here.