Complainant

Respondent

Parties

John Walsh

Tesco Ireland Limited

Representatives

JJ Tevlin of Tevlin Clarke HR Consulting

Dajana Sinik of IBEC

Act

Complaint/Dispute 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)

CA-00071803-001

22/05/2025

The complaint form was submitted on 22 May 2025 and alleged a breach of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, commonly referred to as TUPE regulations.

Carol McKiernan, People Partner; Conor Tully, Store Manager; Martin Geraghty, Area Manager and Sharon Wallis, Colleague Relations Manager attended the hearing on behalf of the Respondent.

The Complainant gave evidence on his own behalf and Carol McKiernan, Martin Geraghty and Conor Tully gave evidence on behalf of the Respondent, all by way of civil affirmation. All parties were cross examined.

Both parties made final submissions at the closing of the hearing, with the Respondent reading from a pre-prepared submission which was submitted after the hearing to ease note taking. The Complainant also sought to adduce a post hearing submission, but it was not one that had been read at the hearing nor was it agreed that post hearing submissions would be accepted and so this was returned to the Complainant and not considered as part of this decision.

In his complaint form, the Complainant says that he was employed by McEvoys SuperValu, Virginia, from 6 March 1998 as Assistant Manager and transferred to the Respondent on 21 May 2025 under TUPE. He contends that, despite his job title, his role for approximately 27 years was principally concerned with stockroom management, stock control, ordering, goods-inwards, returns, stocktakes, supplier liaison and related operational duties, and did not include responsibility for staff rostering, disciplinary matters, performance reviews or sales targets. The Complainant submits that, prior to the transfer, the Respondent advised him that his existing role did not exist within its business structure and sought to place him in a Line Manager position involving people management and target-based responsibilities. He maintains that these duties are fundamentally different from those he carried out throughout his employment with SuperValu and that he repeatedly advised the Respondent that he had neither the experience nor training for such a role. While he was subsequently informed on 20 May 2025 that some of his previous duties might be available to him, he was also advised that he could be required to undertake Line Manager duties at any time. The Complainant contends that the Respondent has failed to preserve the substance of the role which transferred under TUPE and is seeking to impose significantly different duties which formed no part of his employment during his 27 years of service.

Evidence of the Complainant

The Complainant said that he had held the job for 27 years and expected a seamless transfer. He described himself as being totally in charge of the store room and all goods that were ordered and delivered. He reported directly to the owner of the store, who was also the store manager. As part of his duties, he directed staff to stock shelves and was responsible for all ordering and direct deliveries.

The Complainant met with Mr Geraghty as part of the consultation process and provided a list of his duties. He was told that he would be offered a line manager role; however, he said that the duties of this position were completely different from those he currently performed. He explained that most of what he did was not available in Tesco because the processes were automated. He soon realised that his duties and role did not exist within the new structure and that the new job description was not at all the same as his previous role.

The Complainant said that he now mainly packs shelves on the shop floor and reports to a team leader. He stated that none of the work is his decision, whereas previously he had full control and directed staff. Prior to the transfer, he managed between 15 and 20 deliveries each day. In Tesco, however, all deliveries are completed before he starts work. He said that before the transfer he spent his entire day in the store room, whereas he now spends approximately 90% of his time on the shop floor stacking shelves.

The Complainant noted that his colleagues in the butcher's section were offered redundancy because that section was not being retained. He believes that, as his own position no longer exists, he should also have been offered redundancy.

In written submissions dated 2 December 2025 the Respondent set out that the Complainant’s employment transferred from McEvoy’s Eurospar/SuperValu, Virginia, to Tesco Ireland Limited on 21 May 2025 pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. The Respondent stated that the Complainant had been employed since 6 March 1998 and, immediately prior to the transfer, held the position of Assistant Manager. The Respondent maintained that following the transfer the Complainant continued in employment on his existing terms and conditions, stating that his salary and working pattern remained the same.

The Respondent outlined the consultation process undertaken in advance of the transfer. It submitted that consultation commenced on 26 March 2025 in anticipation of the transfer on 21 May 2025 and involved 46 employees. A town hall meeting was held to explain the reasons for the transfer, the proposed date of transfer and its legal, economic and social implications. The Respondent stated that it conducted both an information and consultation process with affected employees and a due diligence exercise with the transferor business.

The Respondent submitted that each transferring employee was offered an individual meeting and that the Complainant attended a one-to-one meeting on 1 April 2025 with Martina Gormley, People Partner, and Martin Geraghty, Area Manager. During that meeting the Complainant was informed about the transfer, Tesco’s remuneration package and benefits, and was afforded the opportunity to discuss his role and raise questions. Subsequent meetings were also held during which a sample Line Manager contract was reviewed and the Complainant provided details of his duties as Assistant Manager with SuperValu.

The Respondent submitted that during the consultation process the Complainant expressed concerns regarding aspects of the proposed Line Manager role and stated that he had obtained advice from the WRC. The Respondent contended that Mr Geraghty explained how the duties of the Complainant’s previous role compared with those of a Tesco Line Manager and advised him that he would continue to be expected to perform the duties encompassed by his existing role. The Respondent stated that the Complainant advised that he did not wish to undertake certain functions, including disciplining colleagues, staff training and opening and closing the store. According to the Respondent, the Complainant subsequently indicated that he would not sign the Tesco contract.

The Respondent maintained that the Complainant continued to work the same flexible hours following the transfer and continued to perform his duties as before. It was submitted that he was not required to undertake additional duties associated with the Tesco Line Manager role and that, although he received training in aspects of that role, he challenged certain responsibilities and did not perform specific duties associated with it. The Respondent further stated that such duties were neither imposed upon him nor the subject of any dispute after the transfer.

As a preliminary matter, the Respondent argued that the complaint was premature and therefore inadmissible. It noted that the complaint was lodged with the WRC on 22 May 2025, the same date on which the Complainant stated in his complaint form that the transfer was taking place. The Respondent submitted that insufficient time had elapsed for any breach of the TUPE Regulations to occur and that no evidence existed of any change to the Complainant’s terms and conditions of employment. It maintained that it had assumed and preserved the Complainant’s existing contractual rights in accordance with its legal obligations and that, at the time the complaint was filed, it had not yet had a reasonable opportunity to complete the administrative and payroll implementation of the transfer.

The Respondent contended that the complaint was based entirely on speculation regarding duties that the Complainant believed he might be asked to perform in the future rather than any actual alteration to his terms and conditions. It submitted that there had been no unilateral change imposed on the Complainant and no tangible evidence that the Respondent had failed to honour any transferred contractual entitlement. The Respondent further argued that TUPE protections arise upon or after a transfer and that, in circumstances where the complaint was lodged on the day of transfer, there was no completed contravention capable of founding a claim.

The Respondent acknowledged that the Complainant had raised concerns that the role of Assistant Manager which he had performed for approximately 27 years did not exist within the Tesco structure and that he had been offered a Line Manager position. However, the Respondent submitted that the Complainant’s terms and conditions remained unchanged following the transfer and continue to remain unchanged. It argued that any additional tasks identified during consultation were consistent with managerial responsibilities within the Respondent’s business and did not amount to a detriment. The Respondent maintained that, in any event, the Complainant continued to manage the stockroom following the transfer, which was the aspect of his role he wished to retain.

The Respondent further submitted that any discussions concerning potential duties took place during the consultation process before the transfer and that, following the transfer, the Complainant had not raised any formal or informal concerns regarding his role through management or human resources channels. The Respondent stated that it was therefore unclear as to the precise basis of the complaint and asserted that there was no actionable grievance.

In conclusion, the Respondent submitted that the claim lacked any evidential basis demonstrating non-compliance with the TUPE Regulations. It argued that the complaint was premature, speculative and procedurally defective, that the Complainant had not established any actual breach or detriment arising from the transfer and that he had failed to utilise the Respondent’s internal grievance procedures before initiating proceedings. The Respondent accordingly requested that the complaint be found inadmissible or, alternatively, not well founded.

Evidence of Carol McKiernan

Ms. McKiernan outlined that she was the people partner who oversaw the transfer and she co-ordinated meetings with team members and sat in on two such meetings with the Complainant. She recounted that he said that he had not done people management before and was not prepared to take on those duties. She confirmed that the Complainant retained his pay and hours.

Evidence of Martin Geraghty

Mr. Geraghty said that he is an area manager and has been with the Respondent for 30 years. He has responsibility for 18 of it’s stores in the area that he manages. He confirmed that, prior to the transfer, he understands that the Complainant reported to the store owner. He described the role held by the Complainant at that time as a warehouse manager which would have involved directing colleagues (but not managing them) and ordering stock. He considered the Complainant valuable to the management team and saw a role for him within the Respondent post transfer. He thought that he would be best suited to a line manager role, because the deputy manager has day to day responsibility for running the store. When the Complainant described his role, it was the equivalent of a line manager role that he was describing. His view is that the line manager role is the same as the assistant manager role which existed pre-transfer.

Mr. Geraghty said that all stock management in the Respondent is automated and there is no manual intervention in that, save to count it and make sure that it is well presented. He said that the Complainant was very reluctant to take on people management functions and that the line manager role centres around management of people.

Evidence of Connor Tully

Mr. Tully is the current store manager in Virginia. He said that he had received a synopsis of the consultations that had taken place before his appointment. He described how a line manager is a people manager who reports to the deputy manager of the store. They are responsible for KPI’s, rosters and people management. He said that he did not direct the Complainant to manage people and did not limit his management responsibility. He said that the Complainant’s grade didn’t change.

Council Directive 2001/23/EC, which at Recital 3 provided: “It is necessary to provide for the protection of employees in the event of a change of employer, in particular, to ensure that their rights are safeguarded.” was transposed into Irish law by Statutory Instrument Number 131/2003 –European Communities (Protection of Employees on Transfer of Undertaking) Regulations 2003, commonly referred to as the TUPE Regulations.

The purpose of the TUPE Regulations is to protect employees and ensure their rights are safeguarded during a transfer of an undertaking to another employer, for example the change of an employer during a sale of a business. In a relevant transfer, the employment is preserved and continuity of employment is continued.

Regulation 3(1) of the TUPE Regulations provides as follows:

(1) These Regulations shall apply to any 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 (including the assignment or forfeiture of a lease) or merger.

There is no dispute between the parties that a transfer within the meaning of the Regulations took place on 21 May 2024.

Preliminary issue

The Respondent argues that, as only one day had elapsed since the transfer, there could not have been sufficient time for any breach to occur and that the complaint should therefore be dismissed.

The Complainant submits that a complaint may be made in advance of a transfer, as the Regulations impose obligations relating to consultation. He contends that a worker is entitled to complain that those obligations have not been complied with before the transfer takes place.

I do not accept the Respondent's preliminary argument that the complaint is premature. The Respondent outlined a lengthy and comprehensive consultation process in its submission. During that process, information was exchanged from which it was reasonable for the Complainant to infer that his employment would be significantly altered, in particular that the stock room functions he had performed for more than 20 years would be automated and that he was being offered the position of line manager.

While the complaint form was submitted only one day after the transfer took place, the change anticipated by the Complainant was implemented on the date of transfer. His complaint is that this change constituted a breach of the Regulations. In those circumstances, I am satisfied that it is not premature to assess whether a breach occurred on that date.

The Respondent further argued that the Complainant had failed to exhaust the internal grievance procedure. However, I can identify no provision within the Regulations requiring an employee to exhaust internal procedures before bringing a complaint. Accordingly, while the existence or use of an internal grievance process may be relevant in certain circumstances, it does not affect the Complainant's entitlement to pursue a statutory complaint under the Regulations.

The substantive complaint

The Complainant contends that his terms and conditions of employment were not safeguarded following the transfer on 21 May 2024.

Regulation 4(1) provides:

“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.”

Accordingly, any rights and obligations owed by McEvoy's Supervalu to the Complainant under his contract of employment transferred to the Respondent on the date of transfer.

The Complainant submits that his role of managing the stock room ceased to exist following the transfer because the Respondent's system is automated and that he was instead offered the position of line manager.

The Respondent submits that there has been no change to the Complainant's terms and conditions of employment. While acknowledging that different duties were identified, it maintains that the role remains available to the Complainant on the same terms and conditions, including salary and working pattern, as those previously enjoyed.

It is clear from the evidence that the Complainant's duties changed following the transfer as a result of the Respondent operating different systems and processes to those of the Transferor. The issue for determination is whether the aspects of the Complainant's role that changed constituted rights or obligations arising from his contract of employment and therefore transferred to the Respondent pursuant to Regulation 4(1).

This requires consideration of the Complainant's contract of employment with the Transferor. The Respondent exhibited a copy of that contract, dated 18 February 2011, between McEvoy's Eurospar Ltd and the Complainant. The second paragraph provides:

“This statement sets out the terms and conditions of your employment, which together with your offer letter <and/or> employee handbook constitutes your Contract of Employment with the company.”

Under the heading Job Title, the contract states:

“The Employee's position is that of Assistant Manager.

All employees are required to be totally flexible in terms of job functions and while certain employees will have specific expertise in one particular area, they will be willing to move around and help out whenever the demand arises. This flexibility may extend to working hours and rostering depending on business requirements.”

The Complainant gave compelling evidence regarding the extent of the changes to his role. I found him to be a credible witness. He described having performed his role successfully for 27 years and stated that the position he held within the store no longer exists. He explained that he went from having full responsibility for the stock room and directing staff to mainly packing shelves alongside employees whom he previously supervised, a situation which he found humiliating. He also stated that, prior to the transfer, he reported directly to the store manager whereas, following the transfer, he reported to the deputy manager.

I accept that the contractual clause above entitled the employer to require flexibility in relation to the Complainant's job functions “whenever the demand arises.” However, the changes described by the Complainant go beyond the ordinary exercise of contractual flexibility. The evidence establishes that he occupied a senior position within the store's management structure, reporting directly to the store manager and operating on the second tier of management. That status formed part of the employment relationship transferred to the Respondent.

Mr Geraghty gave evidence that the Complainant's pre-transfer role was, in effect, that of warehouse manager and that such a position does not exist within the Respondent's management structure. He confirmed that stock ordering is automated and that there is no manual intervention other than ensuring stock is displayed, fresh and properly rotated. He considered the Complainant's duties to be more closely aligned with a line manager role than that of deputy manager, as responsibility for the day-to-day running of the store rests with the deputy manager. He also stated that a line manager role is focused on the management of people, a role which the Complainant did not wish to undertake.

Notwithstanding the Respondent's characterisation of the Complainant's duties, the contract of employment clearly identifies him as an Assistant Manager. The evidence establishes that this was a senior role involving direct reporting to the store manager and placement on the second tier of the management structure. While the Respondent's organisational structure may not contain an identical title, it remained obliged, pursuant to Regulation 4(1), to preserve the rights and obligations arising from the Complainant's contract of employment.

By offering the Complainant a line manager role and introducing additional layers of management between him and the store manager, the Respondent failed to maintain a key aspect of the Complainant's contractual position. I am satisfied that the obligation transferred from the Transferor included maintaining the Complainant in a role equivalent in status and seniority to that which he previously occupied. Although his salary remained unchanged, the effect of the transfer was that the Complainant was placed in a less senior position within the management hierarchy. In practical terms, he was demoted as a consequence of the transfer.

I am satisfied that this change took effect on the date of transfer and therefore find that the Respondent breached Regulation 4(1) of the Regulations.

It is commendable that the Respondent regarded the Complainant as a valuable employee and sought to retain him following the transfer. However, the evidence, including that of Mr Geraghty, establishes that the management role performed by the Complainant prior to the transfer no longer exists within the Respondent's structure. That fact is central to this complaint and supports my conclusion that the Respondent failed to preserve the contractual position transferred to it under the Regulations.

I must now look at what remedies are available on foot of a breach of the Regulations.

Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, addresses complaints and, in relevant part, it states:

A decision of a rights commissioner under paragraph (4) shall do one or more of the following:

a)       declare that the complaint is or, as the case may be, is not well founded;

b)      require the employer to comply with these Regulations and, for that purpose, to take a specified course of action; or

c)       require the employer to pay to the employee compensation of such amount (if any) as in the opinion of the rights commissioner, is just and equitable in the circumstances, but -

(i)                  in the case of a contravention of Regulation 8, not exceeding 4 weeks remuneration and,

(ii)                in the case of a contravention of any other Regulation, not exceeding 2 years remuneration,

Regulation 10 was amended by the Workplace Relations Act 2015, which specified the Regulations for the purposes of Part 4 of that Act. Accordingly, references to a Rights Commissioner are now to be read as references to an Adjudication Officer and complaints are presented under the Workplace Relations Act 2015. The available remedies remain those set out above.

For the reasons already outlined, I find that the complaint is well founded. The remaining question is whether I should direct the Respondent to take a specified course of action in order to comply with the Regulations or award compensation to the Complainant.

The Complainant's preferred outcome is that he be offered redundancy, as occurred with his colleagues in the butcher's section. The Respondent submits that this is not appropriate, as an alternative role remains available to him.

Even if I were to accept that redundancy may be viewed as a logical outcome in the circumstances of this case, I do not consider that I have the power under the Regulations to direct such a result. Regulation 10(5)(b) empowers me to require an employer to take a specified course of action for the purpose of complying with the Regulations. I do not consider that directing the Respondent to make the Complainant redundant would constitute a measure designed to secure compliance with the Regulations. While the Regulations provide that dismissals for economic, technical or organisational reasons entailing changes in the workforce are not prohibited, they do not confer a power on an Adjudication Officer to compel an employer to create or implement a redundancy situation. In those circumstances, I am not satisfied that the Complainant's preferred outcome is one which I may lawfully direct.

This leaves compensation as the appropriate remedy. The maximum compensation available for a breach of Regulation 4 is two years' remuneration.

The Respondent emphasised that the complaint was lodged one day after the transfer took place. I accept that any award of compensation must be proportionate to both the nature of the breach and the circumstances in which the complaint arose.

The Respondent further submits that the Complainant's contractual rights were preserved. For the reasons already set out in this decision, I do not accept that position. The Complainant understood through the consultation process that automation would replace the majority of the functions he had previously performed and that he would be offered a line manager position. That anticipated change took effect on the date of transfer and had an immediate impact on his role.

In the particular circumstances of this case, I regard the breach as a substantial one. While I accept the Respondent's position that the Complainant was unwilling to undertake certain additional duties, the fact remains that the senior role which he held prior to the transfer no longer existed on the transfer date. As a direct consequence, he was placed in a more junior position within the management structure.

I find this to be a significant breach of the obligations imposed by Regulation 4(1). The Complainant's salary was maintained; however, the essence of his managerial status and position within the organisational hierarchy was not preserved. Having regard to all of the circumstances, including the seriousness of the breach, the immediate impact on the Complainant's role, and the requirement that compensation be just and equitable, I award the Complainant compensation in the amount of €30,000 for the Respondent's failure to maintain the Transferor's obligation to retain him in a role of equivalent seniority following the transfer.

I find that the within complaint is well founded and award the Complainant €30,000 in compensation as a result of the Respondent’s breach of Regulation 4 of the European Communities (Protection of Employees on Transfer of Undertaking) Regulations 2003.

TUPE – Regulation 4