Consultation

Information and Consultation

The representatives of the employees who are affected by the transfer, or where there are no representatives, the employees, must be informed of the proposed date of transfer, the legal economic and social implications, and the measures envisaged in relation to employees.  This obligation is in addition to the general obligations in relation to information and consultation.

This information must be given in good time before the transfer is carried out. What constitutes sufficient time, or “in good time” is not defined. Furthermore, where measures are contemplated in relation to the employees, the employer must consult with them in good time with a view to reaching an agreement.

The obligation applies, irrespective of whether the transfer is undertaken or caused to be undertaken by the employer itself, or by some other entity, which it does not control.  The fact that the employer may not be in a position to provide all the information is not sufficient excuse for failing to do so.

In some cases, the Acquired Rights Directive requires that states provide for the appointment of employee’s representatives for the purpose of information and consultation in a transfer of undertaking.


Duty to Inform Employees

The transferor and transferee are obliged to inform representatives of employees affected by the transfer of

  • the date or proposed date of 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 employee.

These obligations apply irrespective of whether the decision is taken by the employer or a holding or other superior entity or company.

Where there are no representatives, the employees concerned must be informed directly of the above particulars.

General information in relation to the above matters is likely to suffice. However, it must be accurate. If employees have no representatives, the transferor and transferee must give a written statement outlining the required particulars. A notice concerning the particulars must be made available, where employees can read them.

The Employees (Provision of Information and Consultation) Act 2006, implementing separate EU Directive requires general arrangements for informing and consulting employees. These separate obligations apply and are not limited by the legislation.


Communication of Employee Measures

Where the transferor and transferee foresee measures affecting the employees, it shall consult them or their representatives in good time in relation to the measures, with a view to reaching an agreement. There is no obligation to ensure that an actual agreement is reached.

Where measures are envisaged in relation to employees, the transferor and transferee as appropriate are required as soon as reasonably practicable, not later than 30 days before and in any event in good time to consult with the employee’s representatives in relation to the measures, with a view to reaching an agreement.

The employer need not necessarily state whether or not there will be redundancies. It must set out what organisational changes or changes to terms and conditions of employment will occur.

The failure to give notice sufficiently in advance, does not invalidate the transfer or arrangements. In many cases, compliance may be difficult for commercial reasons. Nonetheless the obligations apply, and they be may  be the subject of  enforcement by the WRC.


Manner of Communication of Information

The transferor and transferee, must as soon as reasonably practicable, but not later than 30 days before the transfer or in any event in good time, provide the employee’s representatives with the specified information.

The employee representative is the trade union, staff association or excepted body, with which it has been the practice of the employer to conduct collective bargaining negotiations.  If none such exists, a person or persons chosen by the employees under the legislation may be the representatives for this purpose. In larger firms, employee representatives may be already in place under the EU derived information and consultation legislation.

The information is to be given in sufficient time before the transfer is undertaken. Notice in writing is required of the relevant terms of the transfer. It may be based on information which is known or ought to be known at the time the transfer takes place.


Position if No Representatives

If there are no representatives, the transferor and transferee must give employees a statement outlining the requisite particulars.  It should give notices and/or display notices in the workplace with the requisite details.

Each of the employees must be informed in writing of the following:

  • the date of the proposed transfer.
  • the reasons for the transfer.
  • the legal implications of the transfer.
  • a summary of relevant economic and social implications of transfer for employees.
  • the measures envisaged in relation to employees.

Employee Representatives

States may limit the obligations to undertakings and businesses which due to the number of employees, meet the conditions for mandatory election or appointment of representatives. States may provide that where there is no representative, (which is not due to the employee’s default) the employees concerned must be informed in advance in the above terms.

The Acquired Rights Directive provides that if the undertaking (business) or part of an undertaking preserves its autonomy, the status and functions of the representatives or representatives of the employees affected by the transfer are preserved on the same terms and subject to the same conditions as existed prior to the transfer by virtue of law, regulation, administrative provision or agreement, provided the conditions necessary for constitution of the employees representatives are fulfilled.

This provision is designed to preserve the pre-existing representative arrangements on the transfer of a business as a going concern. The entity must preserve its autonomy after the transfer. This may occur if it retains a specific organisational structure. If they are integrated into a new and different structure, there may not be sufficient preservation of autonomy.

If the entity preserves autonomy within a larger entity, there may be sufficient continuity. The change of persons in charge is not necessarily inconsistent with the continuity of autonomy, unless those ultimately in charge may reorganise the activities and substitute themselves for those immediately in charge.

Where an undertaking, business or part of an undertaking does not preserve autonomy, the transferee must arrange for the selection of a new representative in the requisite period. The term of office of representatives is terminated by the transfer. The former representatives are to continue to enjoy the Unfair Dismissals Act protections from dismissals for trade union and related representative activity.


Transferor / Transferee

The transferor is obliged to notify the transferee of the rights and obligations under the contracts of employment, which are being transferred, insofar as he is aware of them or ought to be aware of them.  The failure to notify does not negate the transfer in any way.

Where information has not been supplied, which is required for fulfilment of the transferee’s duties, the transferee may be entitled to recover compensation. Where the transferee is required to pay compensation in proceedings to an employee, it may apply to the court to recover all or a portion of the compensation from the transferor, which the court deems to be attributable to the latter’s failure to provide the requisite information, documentation, etc.

Notice must be given to the transferor of the obligation and of the particular information or class of documents, which the transferee believes to be under its control.  It must be requested within a specified period, of not less than 21 days.  The transferee is obliged to furnish the information and particulars or further information and particulars sought.  This statutory right of action is without prejudice to any other obligation of the transferor.

The transferee may have a right to an indemnity and reimbursement against the transferor under the relevant sale / transfer agreement.

The failure to comply with the obligations to furnish information may lead to an award of compensation.


Enforcement

The Directive provides for procedures to allow employees or representatives to take proceedings if they are aggrieved by non-compliance with the Directive. A complaint may be made to the Workplace Relations Commission in relation to a breach of the regulations.  The WRC may declare whether the complaint is well founded.  It may require payment of compensation as is just and equitable.

In the case of information and consultation, the compensation for breach, must not exceed 4 weeks’ remuneration. In any other case, it may not exceed 2 years’ remuneration.  The decision of the adjudication officer may be appealed to the Labour Court.  The decision is enforceable in most of the same way as other decisions of the rights commissioner namely by application to the Circuit Court for an enforcement order, directing the employer carry out the determination.

In addition to the provisions for a complaint to the WRC, a complaint may be Department requesting an investigation of the position. The Department has the   usual investigatory powers.  An authorised officer may seek information and enter premises.   The officer may require information from the employer, transferor and transferee body concerned.


References and Sources

Primary References

Transfers of undertakings in Ireland: Employment Rights  Houston 2011

Transfer of Undertakings Gary Byrne  1998

Employment Law  Meenan  2014 Ch. 16

Employment Law Supplement Meenan 2016 Ch.

Employment Law Regan & Murphy  2009  Ch.19 ( 2nd Ed 2017)

Employment Law in Ireland Cox & Ryan 2009 Ch.23

Other Irish Books

Employment Law Forde & Byrne 2009

Principles of Irish Employment Law         Daly & Doherty   2010

Legislation

Council Directive No. 2001/23/EC of 12 March 2001

European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 S.I. No. 131/2003

Periodicals and Reports

Employment Law Yearbook (annual) Arthur Cox

Employment Law Reports

Irish Employment Law Journal

Employment Law Review

Websites

Workplace Relations Commission http://www.lrc.ie/en/

Irish Human Rights and Equality Commission https://www.ihrec.ie/

Health and Safety Authority http://www.hsa.ie/eng/