The Complainant commenced employment as a sales assistant with the transferor (name redacted) on the 3rd of July 2000. The Complainant’s employment remained uneventful until the 22nd of April 2008, when the Complainant’s then employer corresponded with the Complainant and advised that they intended to transfer her to the employment of the Respondent via transfer of undertakings. 

All of the Complainant’s employment terms, including an enhanced redundancy pay-off of five weeks’ salary for each year of service, were transferred from her previous employer to the new business in 2008 under the Transfer of Undertakings (Protection of Employment) regulations. In or about December 2011, the Respondent offered the Complainant and her colleague the terms of the Mandate Trade Union/Transferor (Name Redacted) collectively agreed redundancy agreement, equalling 5 weeks per year of service. The Complainant contended that the forgoing clearly demonstrated that the terms of the collective agreement vis-a-vis redundancy had clearly and unambiguously transferred from the transferor to the Respondent. 

In November 2020 the Respondent commenced redundancy consultations with the Complainant and advised by way of letter on the 19th November that she had been made redundant on statutory terms.The Complainant appealed the matter; however, her appeal was not upheld.  The Complainant’s TU argued that the agreed redundancy package of 5 weeks’ salary per year of service applied but the Respondent did not respond.  The Complainant maintained that a voluntary redundancy package offered to employees of her former employer in July 2003 forms part of the terms and conditions of her employment. 

The Respondent submitted that there was no evidence provided to indicate any entitlement to enhanced redundancy pay forms part of the terms and conditions of her employment or that it ever did. The Complainant was paid statutory redundancy in line with all other employees made redundant by the Company. 

The Respondent submitted further that the Complainant was relying on the existence of a collective agreement which entitles her to enhanced redundancy entitlements over and above statutory redundancy. No evidence of any collective agreement which binds the Company had been provided by the Complainant. 

The Adjudication Officer ruled that in the instant case there was no expiry period of the agreement on redundancy and no effort made by the transferee to amend or change such agreement and therefore, the adjudication officer ordered that the Respondent pay compensation to the Complainant in the sum of €32,000. 

Guidance for Employers  

This case is a useful reminder of the relevance of the Transfer of Undertakings (Protection of Employment) Regulations when it comes to the transfer of employment rights and responsibilities, and it is often when a redundancy situation arises that they become important.  In this case the AO found that the Collective agreement entered into by the transferor transferred to the transferee (the Respondent) and was still in place at the time of the redundancy situation.  Employers should be mindful of the importance of seeking legal advice regarding TUPE rights and responsibilities. https://www.workplacerelations.ie/en/cases/2022/adj-00033181.html