TUD221

FULL RECOMMENDATION

SECTION 11 (1), EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS) REGULATION, 2003

PARTIES :

ACCENT SOLUTIONS

- AND -

MR ALAN O'CONNOR
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

SUBJECT:

1. Appeal Of Adjudication Officer Decision No. ADJ-00028530 CA-00036644-005

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 2 September 2021. A Labour Court hearing took place on 25 February 2022. The following is the Determination of the Court:

DETERMINATION :

This is an appeal by Mr Alan O’Connor (the Complainant) against a Decision of an Adjudication Officer ADJ-00028530 CA-00036644-005) under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, S.I. 131/2003, (“the Regulations”), dated 26 July 2021, against his former employer Accent Solutions.

The Adjudication Officer found that Mr O’Connor’s complaint was not well founded. Mr O’Connor lodged an appeal to the Labour Court on 2 September 2021 and a hearing of the Labour Court was held on 25 February 2022.

In this Determination the parties are referred to as they were at first instance. Hence, Mr Alan O’Connor is referred to as the Complainant and Accent Solutions is referred to as the Respondent.

Background

The Complainant commenced work as a plumber/handyman in October 2006 with Dalkia. In 2009 the facilities management unit of Dalkia transferred to another company Mitie, and in line with the Transfer of Undertakings Regulations, the Complainant’s terms and conditions of employment transferred to Mitie with the sale. In 2015, the Complainants terms and conditions of employment transferred to Aramark, and subsequently to the Respondent in February 2019. His employment was terminated by reason of redundancy on 31 March 2020.

Complainant’s case

SIPTU, on behalf of the Complainant, submits that the Respondent is in breach of the Transfer of Undertakings Regulations by denying the Complainant his contractual entitlement to health insurance cover from February 2019 when his employment transferred to the Respondent to when his employment ended in March 2020.

An entitlement to avail of health insurance (VHI Plan B) formed part of his terms and conditions of employment. An alternative package was offered to him, which was an inferior package to the one he previously received. The Complainant seeks €4,223.13 as compensation for the breach, which he says is equivalent to the cost of the health insurance scheme contributions that the Respondent should have paid on his behalf since the date he transferred his employment.

Respondent’s case

The Respondent refutes that it contravened any contractual rights or TUPE protections. The Complainant was not a member of any health insurance scheme on the date of the transfer. No data was provided to the Respondent at the time of the transfer to say that the Complainant was entitled to health insurance. When the Complainant raised a query about health insurance with the Respondent, it investigated the matter with his previous employer.

It established that the Complainant had a contractual entitlement to avail of health insurance cover but had let his membership lapse when he was employed by his previous employer. The Complainant indicated that he wished to have his health insurance reinstated and he was given the option of joining the Respondent’s health insurance scheme (Irish life 4D Health 2), which is substantially equivalent to his previous scheme. The Respondent maintains that it offered the Complainant access to a substantially equivalent health insurance scheme and therefore no contravention of the TUPE Regulations occurred.

The relevant law

Regulation 4 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, S.I. 131/2003 states that:

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.

Consideration

The question before the Court is whether or not the Complainant was retained on less favourable terms and conditions of employment to those he had held while in the employment of his previous employer, following the transfer of his employment to the Respondent.

In response to questions from the Court, the Complainant confirmed that the contractual entitlement which he seeks to maintain arises from his 2006 contract of employment which states as follows “You will be entitled to join the group VHI scheme; the company will cover your costs up to Plan B”. While the Complainant’s initial contract of employment in 2006 provided him with access to VHI Plan B, he accepts that at a later point he was provided with access to different group plans provided by other providers, Irish Life and Aviva. It is also accepted that the Complainant let his group membership lapse prior to the transfer of his employment to the Respondent.

The Respondent accepts that under the Complainant’s contract of employment he was entitled to join a group health insurance scheme. It submits that once it became aware of this matter, and the Complainant indicated that he wished to have his health insurance reinstated, they facilitated that request with access to a scheme that was substantially equivalent to his previous scheme.

However, the Complainant did not avail of that offer. In these circumstances, it submits that no breach of the Regulations occurred.

The Complainant takes issue with the fact that, since his employment transferred to the Respondent, no contributions were paid by the Respondent to his health insurance, and he did not receive the benefit of the plan which the Respondent proposed.

As such he submits that he was at a loss and suffered less favourable terms and conditions of employment in breach of the Regulations.

In the view of the Court, in circumstances where the Complainant let his health insurance membership lapse prior to transferring employment to the Respondent, and then declined to join the group scheme offered to him when he indicated his wish to reinstate his health insurance, the Complainant cannot rely on an assertion that he was at a loss because he was denied a contractual entitlement to join a group health insurance scheme.

The Complainant also takes issue with the terms of the group scheme offered to him, which he says were inferior to terms he previously enjoyed, particularly in relation to orthopaedic care. The Respondent refutes this and submits that, while aspects of the scheme differed, it was a substantially equivalent scheme.

It is accepted that the terms and options available under different health insurance schemes have become increasingly complex and varied in recent years. A group scheme may not cater to everyone’s individual preferences.

The Court is not an expert on the terms of health insurance schemes. It is not the role of this Court to conduct an assessment of the complex range of benefits offered under one scheme in comparison to another. No expert evidence was offered to the Court to assist it in relation to this matter. In all of the circumstances, the Court cannot find that the health insurance terms offered by the Respondent were lesser terms in the round than those held by the Complainant previously.

Having regard to all of the circumstances of this case, the Court finds that no breach of the Regulations occurred.

Determination

For the reasons set out above, the Court finds that the Respondent was not in breach of the Regulations. The Decision of the Adjudication Officer is upheld accordingly.

The Court so Determines.

NOTE

Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary.