ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00020880
A Cleaning Worker
A Contract Cleaner
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)
Date of Adjudication Hearing: 25/10/2019
Workplace Relations Commission Adjudication Officer: Pat Brady
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Summary of Complainant’s Case:
The complainant and her co-workers received an email on the 27th march from their then employer stating that it had been unsuccessful in its bid to renew the cleaning contract it had with a secondary school.
The contract was due to terminate on the 29th March.
The email stated that a transfer of undertaking would apply that her contact details would be forwarded to the new contractor.
She presented for work on the 29th march at 16:00 and were told at 18:00 that the new employers (the current respondent) did not regard the change in contract as being covered by the TUPE Regulations.
In due course her then employer (not the current respondent) made her redundant while she was still on maternity leave.
Summary of Respondent’s Case:
The respondent is a cleaning company which successfully won a tender to clean a local secondary school in March 2019.
The contract had been put out to tender in February 2019. The respondent submitted its tender in March and the contract was awarded in late March commencing on April 1st 2019.
The complainant was and remains an employee of the cleaning company which previously had the contract to clean the school. The respondent has never employed the complainant and it submits that no transfer under the TUPE Regulations occurred in this case.
In fact, the facts of this case mirror the facts of the Suzen case, in which it was found by the CJEU that no TUPE had occurred. (See below)
It is submitted that any case the complainant may have lies against her former employer as the respondent has never employed her nor did any TUPE occur.
On Friday, February 15th, 2019, the respondent received a call from the school explaining that the contract to clean the school was being put out to tender and asking if it would like the opportunity to submit a tender.
The respondent agreed to review the tender and make a submission.
On February 19th, 2019 the respondent received the tender information. Significantly, there was no mention of TUPE (or any relevant TUPE related information) in any of the tender documents.
On February 25th, 2019 the respondent contacted the person nominated in the tender pack to arrange a site visit so it could assess how many hours/staff it required to do the job put out to tender.
The document stated that the deadline for tenders to be submitted was at 4pm on 13th March 2019.and that; ‘The contract will commence from the 1st of April 2019.’
The respondent submitted its tender outlining its price and the number of hours and staff it proposed to utilise to do the job and on March 25th, 2019 the respondent was advised that it had been the successful tenderer.
On March 26th, 2019 the respondent received two calls the first from the school asking about TUPE as the previous contractor (the complainant’s employer and the company that had been previously cleaning the school) had been on the phone asking about TUPE.
On the same day, the previous contractor rang the respondent, requesting a call back and when in the course of this call he started talking about TUPE the respondent stated that TUPE did not apply.
The respondent submits that the previous contractor also informed her that he had not informed the operatives that the contract was going to tender or given thirty days written notice to its employees.
Also, he had not supplied TUPE information to the school nor had any negotiations with the school or his employees about TUPE. He said that the equipment was not staying on site and that he would be taking all the cleaning equipment.
He said he would supply information to the respondent about his employees. She (the respondent) declined this as TUPE did not apply, and thus it would be wholly unnecessary for him to send such information, or for her to receive it.
On Wednesday March 27th, 2019, the respondent received an email from the school enclosing the TUPE information. The respondent rang the school immediately, on foot of that email saying the respondent did not want or request the information, and for him to supply it, would constitute a breach of GDPR.
She also emailed the previous contractor outlining the position, although she discovered that her previous email had been delivered but not read so she sent a text message advising of the email.
The previous contractor told her that his staff would turn up for work on Monday and the respondent could turn them away.
She advised him that the respondent did not enter into TUPE consultations with anyone and that he should inform his staff of that. He said he would do so that evening. The respondent also stated that the new contract was completely different from the old one.
On March 29th, 2019 the respondent was informed that the previous contractor arrived on site at the school and removed all its equipment and told his staff to carry on cleaning. As the staff had no equipment they too left the site and went home without finishing the cleaning.
On April 1st, 2019 the respondent started the contract at the school. None of the previous contractor’s employees presented for work.
The previous contractor is a going concern. It is in business offering cleaning services. No employees or equipment transferred from that company to the respondent.
On April 4th, 2019, the Respondent received a call from the complainant explaining that she was taking proceedings against both the previous contractor and the respondent.
It is the respondent’s position that no TUPE occurred, that any claim the claimant may have, lies against her employer, the previous contractor.
The facts of this case fall squarely within the judgment of Suzen V. Zehnacker Gebaudereingung GmbH Krankenhausservice  IRLR 255, (Case C-13/95)
Findings and Conclusions:
The provisions of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 only apply in circumstances where there has been a transfer of an undertaking, business, or part of an undertaking or business from one employer to another employer as a result of a legal transfer or a merger.
The question is whether the awarding of the contract by the school to the respondent triggers the provisions of the EC (Protection of Employees Rights on Transfer of Undertakings) Regulations 2003.
This issue arises on a regular basis, in particular in relation to the contract cleaning and catering sectors where contracts come to an end and are put to tender again and this situation gives rise to consideration of whether the change represents what has become known as a ‘second generation contract’.
The facts are well set out above.
The complainant’s employer lost the contract to this respondent, and not for the first time in such cases took it upon himself without the benefit of any legal advice to tell his employees that the TUPE regulations applied and that they would transfer to this respondent.
He went further and advised them to present for work with the respondent.
The respondent referred to the decision of the (now) Court of Justice of the European Union (CJEU) in Ayse Suzen v Zehnacker Gebauderinigung Gmbb Krankenhasservice  I.R.L.R 255
In that case the question referred to the CJEU was whether the Directive applied to a situation where an organisation, which had entrusted the cleaning of its premises to a first undertaking, then terminated that contract and entered into a new contract with a second undertaking for similar works without any concomitant transfer of tangible or intangible assets from one undertaking to the other, was subject to the Transfer of Undertakings Regulations 2003.
As the respondent submitted that is exactly what happened in this situation.
The school awarded the cleaning contract to the respondent with no associated transfer of assets such as: goods, equipment, employees, premises operating methods other than the contract to clean the school.
The CJEU held that owing to the fact that no transfer of tangible assets had taken place and the transferee did not take over a major part of the workforce, there was no “transfer” of an undertaking.
In reaching this decision the ECJ identified a number of criteria, which are relevant here;
1) For the Directive to be applicable the transfer must relate to a stable economic entity whose activity is not limited to performing one specific works contract.
2) The fact that the service provided by the old and new holders of a contract is similar does not necessarily support the position that an economic entity has been transferred.
An entity cannot be reduced to the activity it carries out. Its identity also comes from other factors, such as its workforce, its management staff, its buildings, the way in which the work is organised, its operating methods and the operational resources available to it.
Therefore, in this case there was no transfer of assets and/or employees and so it is of no relevance that the respondent is providing the same service as the previous contractor.
The mere loss of a service contract to a competitor does not of itself indicate the existence of a transfer within the meaning of the Directive. In this case the previous contractor did not cease to exist on losing the contract and continues to trade.
The decision in Suzen was followed by the Employment Appeals Tribunal in the case of Mary Cannon v Noonan Cleaning Limited and CPS Limited  E.L.R 153.
In that case Noonan Cleaning held a contract for the cleaning of Balbriggan Garda Station. The cleaning contract was put out to tender and CPS obtained it.
CPS then declined to employ the workers previously employed by Noonan Cleaning Limited and a case for unfair dismissal was taken against both parties.
In applying the decision in Suzen the EAT noted;
“It appears that where the new contractor refuses to take on a major part of the workforce in circumstances of a second generation transfer where a Third Party is responsible for the transfer, the Directive does not apply, i.e. there is no transfer of an undertaking.”
I find on the basis of these authorities and the facts of this case that a transfer of undertakings did not take place.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the reasons set out above I find Complaint CA-00027596-001 is not well founded.
Dated: 18th December 2019
Workplace Relations Commission Adjudication Officer: Pat Brady
TUPE, Second generation transfer