Preserved Rights
European Communities (Protection of Employees on Transfer of Undertakings) Regulations
Rights and obligations.
4. (1) The transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.
(2) Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.
(3) Subject to paragraph (4), this Regulation shall not apply in relation to employees’ rights to old-age, invalidity or survivors’ benefits under supplementary company or inter-company pension schemes that do not fall within the Social Welfare Acts.
(4) (a) The interests of employees and of persons no longer employed in the transferor’s business at the time of the transfer in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors’ benefits, under a supplementary company pension scheme that is an occupational pension scheme within the meaning of the Pensions Acts 1990 to 2003 are protected under those Acts.
(b) The transferee shall ensure that the interests of employees and of persons no longer employed in the transferor’s business at the time of the transfer in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors’ benefits, under a supplementary company pension scheme, other than a supplementary pension scheme that is an occupational pension scheme within the meaning of the Pensions Acts 1990 to 2003, are protected.
Dismissals and termination of employment.
5. (1) The transfer of an undertaking, business or part of an undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee and such a dismissal, the grounds for which are such a transfer, by a transferor or a transferee is prohibited.
(2) Nothing in this Regulation shall be construed as prohibiting dismissals for economic, technical or organisational reasons which entail changes in the workforce.
(3) If a contract of employment is terminated because the transfer involves a substantial change in working conditions to the detriment of the employee concerned, the employer concerned shall be regarded as having been responsible for the termination of the contract of employment.
(4) If a dismissal of an employee, in contravention of paragraph (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001 relief may not be granted to the employee in respect of that dismissal both under these Regulations and under those Acts.
Bankruptcy or insolvency.
6. (1) Regulations 3 and 4 of these Regulations shall not apply to any transfer of an undertaking, business or part of an undertaking or business where the transferor is the subject of bankruptcy proceedings or insolvency proceedings.
(2) For the purposes of paragraph (1) bankruptcy proceedings or insolvency proceedings shall mean the following:
(a) proceedings whereby the transferor may be adjudicated bankrupt under section 14 or 15 of the Act of 1988;
(b) proceedings whereby the estate of a deceased transferor may be administered in bankruptcy under section 115 of the Act of 1988;
(c) where the transferor is a partnership, proceedings whereby all the members of the partnership may be adjudicated bankrupt under section 106 of the Act of 1988;
(d) proceedings whereby the transferor may become the subject of a protection order under section 87 of the Act of 1988 where all or part of the property of the transferor vests (under section 93 of that Act) in the Official Assignee for realisation and distribution;
(e) proceedings where the transferor may be wound up under section 213(e) of the Act of 1963;
(3) Notwithstanding paragraph (1), if the sole or main reason for the institution of bankruptcy or insolvency proceedings in respect of a transferor is the evasion of an employer’s legal obligations under these Regulations, the Regulations shall apply to a transfer effected by that transferor.
Council Directive No. 2001/23/EC of 12 March 2001
CHAPTER III
Information and consultation
Article 7
1. The transferor and transferee shall be required to inform the representatives of their respective employees affected by the transfer of the following:
– the date or proposed date of the transfer,
– the reasons for the transfer,
– the legal, economic and social implications of the transfer for the employees,
– any measures envisaged in relation to the employees.
The transferor must give such information to the representatives of his employees in good time, before the transfer is carried out.
The transferee must give such information to the representatives of his employees in good time, and in any event before his employees are directly affected by the transfer as regards their conditions of work and employment.
2. Where the transferor or the transferee envisages measures in relation to his employees, he shall consult the representatives of this employees in good time on such measures with a view to reaching an agreement.
3. Member States whose laws, regulations or administrative provisions provide that represenatives of the employees may have recourse to an arbitration board to obtain a decision on the measures to be taken in relation to employees may limit the obligations laid down in paragraphs 1 and 2 to cases where the transfer carried out gives rise to a change in the business likely to entail serious disadvantages for a considerable number of the employees.
The information and consultations shall cover at least the measures envisaged in relation to the employees.
The information must be provided and consultations take place in good time before the change in the business as referred to in the first subparagraph is effected.
4. The obligations laid down in this Article shall apply irrespective of whether the decision resulting in the transfer is taken by the employer or an undertaking controlling the employer.
In considering alleged breaches of the information and consultation requirements laid down by this Directive, the argument that such a breach occurred because the information was not provided by an undertaking controlling the employer shall not be accepted as an excuse.
5. Member States may limit the obligations laid down in paragraphs 1, 2 and 3 to undertakings or businesses which, in terms of the number of employees, meet the conditions for the election or nomination of a collegiate body representing the employees.
6. Member States shall provide that, where there are no representatives of the employees in an undertaking or business through no fault of their own, the employees concerned must be informed in advance of:
– the date or proposed date of the transfer,
– the reason for the transfer,
– the legal, economic and social implications of the transfer for the employees,
– any measures envisaged in relation to the employees.
The text in italics on this page is sourced from lawreform.ie and is re-published under the Licence for Re-Use of Public Sector Information made pursuant to Directive 2003/98/EC Directive 2013/37/EU of the European Parliament and of the Council on the re-use of public sector information transposed into Irish law by the European Communities (Re-Use of Public Sector Information) Regulations 2005 to 2015.