INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
Section 8 (1), Terms of Employment (Information) Acts, 1994 to 2012
MARKS AND SPENCER (IRELAND) LTD
- AND -
Chairman: Mr Haugh
Employer Member: Mr Murphy
Worker Member: Mr Shanahan
1. Appeal of a Rights Commissioner's Recommendation r-156894-TE-15JOC
2. The Appellant has been employed as a sales advisor in the restaurant at the Respondent's Grafton Street store since June 2008. He was initially employed there by a third party service provider. However, his employment transferred to the Respondent by operation of the EC (Protection of Employees on Transfer of Undertakings Regulations) 2003 ("the regulations") on 7 April 2013.
The Appellant referred a complaint to a Rights Commissioner pursuant to section 7 of the Terms of Employment (Information) Act 1994 ("the Act") on 5 June 2015. The Rights Commissioner heard the complaint on 20 August 2015 and issued his decision on 29 September 2015. The Rights Commissioner held that the complaint was not well-founded. The Appellant referred his appeal to the Court on 22 October 2015.
The Appellant is contracted to work 30 hours per week i.e. 6 hours per day over 5 days. He submits that the Respondent’s staff handbook (a copy of which he received following the transfer of his employment) provides that he is entitled to a paid daily meal break of 30 minutes in duration because he works a 6-hour day. He further submits that he received a 30-minute break prior to the transfer and that, having regard to the Regulations, he is entitled to no less favourable terms and conditions of employment with the Respondent.
The Respondent’s written submission to the Court exhibited a document entitled “General Staff Statement of Terms and Conditions of Employment/Permanent Contract” which details the various matters which must be included in a written statement furnished by an employer in fulfilment of its obligations under the Act. It is signed on behalf of the Respondent and by the Appellant. It is dated 19 April 2013 i.e. some 2 weeks after the date on which the Appellant’s employment transferred to the Respondent.
The document directs the reader’s attention to the Respondent’s handbook for further and more detailed information regarding conditions of employment. The Respondent informed the Court that there had been an error in the section of the 2011 edition of its staff handbook dealing with meal breaks and that it had issued a corrected version of that section on a separate printed page distributed to all staff, including the Appellant immediately prior to the date of his transfer. The arrangements detailed in the amending document have also been agreed with the trade union.
The Court notes that the Appellant signed the “General Staff Statement of Terms and Conditions of Employment/Permanent Contract” on 19 April 2013. He thereby acknowledged that he had received this document and that he understood its contents and was aware that further detailed information regarding his terms and conditions could be found in the current version of the Respondent’s staff handbook. The Court accepts that the Appellant was issued with the relevant amendment of the section of the handbook that deals with daily meal breaks.
On the basis of the foregoing, the Court finds that the appeal fails. The decision of the Rights Commissioner is upheld.
The Court so decides.
Signed on behalf of the Labour Court
4th December, 2015______________________
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.