Complainant

Respondent

Parties

Edel  Kelly

Bidvest Noonan (ROI) Ltd

Representatives

  Self-Represented

Pooja Sawant

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-00073530-001

16/07/2025

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-00073530-002

16/07/2025

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-00073530-003

16/07/2025

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-00073530-004

16/07/2025

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-00073530-005

16/07/2025

The Complainant was employed as a cleaning supervisor at a manufacturing facility (the Client) by the Mount Charles Group contractors for approximately seven years prior to the Respondent, winning the contract.  The Complainant gave uncontested evidence that her earnings before the transfer were €650 net  per week.  It is common case  that there was a transfer of undertakings  where the staff complement of Mount Charles was transferred across, except for the Complainant.

The Complainant submitted a number of complaints under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) (“the Regulations”) to the Workplace Relations Commission including complaints that she was dismissed as a result of the transfer and that she was not consulted nor advised by the Respondent, the transferee.

The Respondent contends that the Complainant was not eligible to transfer under the Regulations as she was not wholly or mainly assigned to the undertaking immediately prior to the transfer due to a client-directed site removal.

The Complainant gave evidence she had worked on the Client site for approximately seven years, most recently as a supervisor at the specific site in question. She outlined that in November 2024 and January 2025 issues arose relating to site matters, culminating in an investigation.

The Complainant stated that on 2 April 2025 she was instructed to leave the site without advance notice and without being informed of the allegations at that time. She confirmed that this was a site removal, not a dismissal, and that she remained on full pay while an investigation and disciplinary process took place.

She gave evidence that the disciplinary process ultimately resulted in a verbal warning, not dismissal, and that she remained an employee of Mount Charles throughout.

The Complainant stated that she became aware that the Client contract was transferring to the Respondent in late April or early May 2025. On 20 May 2025, she received an email from Ms Linda Connolly, People Change Adviser with the Respondent, welcoming her to employment and seeking personal details, including PPS number and nationality. She replied promptly, providing the requested information and indicating her availability to meet.

The Complainant stated that after this email she received no further communication from the Respondent despite sending follow-up emails seeking clarification. She stated that the Respondent subsequently refused to accept medical certificates submitted during a short period of certified sick leave in June 2025.

She confirmed that she remained on full pay with Mount Charles until the transfer date in early July 2025 and that following that date her employment ceased. She stated that she was never consulted about the transfer nor was she offered redeployment. She said that the email of acceptance of 20 May 2025 from the Respondent was the “first and last time she heard from them”. 

On cross-examination the Complainant accepted that she had been removed from the site at the Client’s request in the months before the transfer and that the Client controlled access to the site. The Complainant acknowledged that she did not physically return to the Client site between April and July 2025 but that she remained on full pay.

The Complainant submitted she did not resign, nor was she dismissed by Mount Charles. She asserts she remained assigned wholly and mainly to the contract up to the transfer date and, accordingly, she should therefore have transferred under Regulations. The Complainant argues that the failure to accept her constituted a dismissal connected with the transfer.

Respondent’s Argument:

There was a site ban implemented on the Complainant by the Client for several weeks or months before the transfer. As a result, she was not “wholly or mainly assigned” to the undertaking immediately prior to the transfer. The site removal was at the client’s direction and amounted to a permanent exclusion from the manufacturing site. The Respondent argues that any obligation to redeploy or manage the Complainant’s employment rested with Mount Charles, not the transferee. In those circumstances the Respondent contended that it was not the correct respondent.

Evidence of Ms Linda Connolly (People Change Advisor):

The witness gave stated that she managed mobilisation of the Client contract for the Respondent. She stated that Mount Charles provided an Employee Liability Information (ELI) list that included the Complainant. A standard welcome email was issued to all employees on the ELI, including the Complainant. Approximately six days later, the witness was informed by operational management and subsequently by the Client that the Complainant had been site-banned and removed at the Client’s request. The witness stated that it was not best practice to include a site-banned employee on the ELI and that she repeatedly communicated to Mount Charles that the Complainant was not eligible to transfer.

She stated that she did not engage directly with the Complainant thereafter because discussions regarding eligibility were ongoing with Mount Charles. The witness believed redeployment obligations rested with Mount Charles and that, had the Complainant remained employed but site-removed, redundancy or redeployment should have been addressed by the transferor.

 In answer to a query, I posed regarding eligibility to transfer under the Regulations, the witness accepted that the Regulations do not expressly refer to “site bans” but maintained that operational reality and client requirements meant the Complainant could not be accepted onto the contract.

Evidence of Ms Justina Lis (Area Operations Manager)

The witness gave evidence that she was informed by the Client on18 April 2025 that a supervisor position at the site needed to be filled because the previous supervisor had been removed from site. She confirmed that she was later provided with written confirmation from the Client that the Complainant was permanently removed and not to return. She stated that a replacement supervisor was recruited before the transfer date.

The witness described client removal as a standard feature of facilities management contracts and stated that a site-removed employee would ordinarily be redeployed elsewhere by their employer.

Evidence of Mr Thomas Burgoyne (Mount Charles Site Operations Manager who transferred in that position to the Respondent)

The witness confirmed that the Complainant was site-removed following a request from the Client and that no instruction was received from the Client permitting her return. He stated that the Complainant did not return to site and that access decisions were controlled by the Client.

It is common case that a transfer of undertakings occurred between the outgoing contractor, Mount Charles, and the Respondent contractor on 7 July 2025 at the Client’s manufacturing facility. The evidence indicates that all available Mount Charles staff assigned to that contract transferred to the Respondent, except for the Complainant.

The Respondent submits that the Complainant was not wholly or mainly assigned to the site contract at the material time, relying on her absence during the relevant period. The Respondent further contends that it would have been wholly unrealistic to employ the Complainant at the Client’s site in circumstances where she had been “site-barred” from the premises.

I am therefore required to determine, first, whether the Complainant was assigned to the contract at the material time for the purposes of the Regulations. I must then determine whether a dismissal occurred and, if so, whether that dismissal was by reason of the transfer itself. Finally, I must consider whether there was an obligation on the Respondent to consult with the Complainant in advance of the transfer and, if such an obligation existed, whether the Respondent discharged its statutory obligations in that regard.

The Applicable Law:

4.Rights and obligations

(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 employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee….

…(3) Subject to paragraph (4), this Regulation shall not apply in relation to employees' rights to old-age, invalidity or survivors' benefits under supplementary company or inter-company pension schemes that do not fall within the Social Welfare Acts.

(4) (a) The interests of employees and of persons no longer employed in the transferor's business at the time of the transfer in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors' benefits, under a supplementary company pension scheme that is an occupational pension scheme within the meaning of the Pensions Acts 1990 to [2018] are protected under those Acts.

(b) The transferee shall ensure that the interests of employees and of persons no longer employed in the transferor's business at the time of the transfer in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors' benefits, under a supplementary company pension scheme, other than a supplementary pension scheme that is an occupational pension scheme within the meaning of the Pensions Acts 1990 to [2018], are protected.

5.Dismissals and termination of employment

(1) The transfer of an undertaking, business or part of an undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee and such a dismissal, the grounds for which are such a transfer, by a transferor or a transferee is prohibited.

(2) Nothing in this Regulation shall be construed as prohibiting dismissals for economic, technical or organisational reasons which entail changes in the workforce.

(3) If a contract of employment is terminated because the transfer involves a substantial change in working conditions to the detriment of the employee concerned, the employer concerned shall be regarded as having been responsible for the termination of the contract of employment.

(4) If a dismissal of an employee, in contravention of paragraph (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to [2015], relief may not be granted to the employee in respect of that dismissal both under these Regulations and under those Acts.

8.Information and consultation

(1) The transferor and transferee concerned in a transfer shall inform their respective employees' representatives affected by the transfer of—

(a) the date or proposed date of the transfer;

(b) the reasons for the transfer;

(c) the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them, and

(d) any measures envisaged in relation to the employees…

(2) The transferor shall give the information in paragraph (1) to the employees' representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out.

(3) The transferee shall give the information in paragraph (1) to the employees' representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the employees are directly affected by the transfer as regards their conditions of work and employment.

(4) Where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement.

(5) Where there are no employees' representatives in the undertaking or business of the transferor or, as the case may be, in the undertaking or business of the transferee, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employees may choose from among their number a person or persons to represent them (including by means of an election) for the purposes of this Regulation.

(6) Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following:

(a) the date or proposed date of the transfer.

(b) the reasons for the transfer.

(c) the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee; and

(d) any measures envisaged in relation to the employees.

(7) The obligations specified in this Regulation shall apply irrespective of whether the decision resulting in the transfer is taken by the employer or an undertaking controlling the employer and the fact that the information concerned was not provided to the employer by the undertaking controlling the employer shall not release the employer from those obligations.

Regulation 4 provides for the automatic transfer of contracts of employment existing at the date of transfer. Regulation 5 prohibits dismissal where the sole or principal reason is the transfer. Regulation 8 imposes a mandatory obligation to inform and consult affected employees.

Was the Complainant wholly or mainly assigned to the site contract?

Regulation 4(1) provides that, where such a transfer occurs, all rights and obligations arising from a contract of employment of an employee assigned to the undertaking shall, by reason of the transfer, be transferred automatically to the transferee. The Regulation operates by force of law and admits of no discretion based on deploy ability, or third-party preference.

The question to be determined is whether the Complainant was assigned to the Mount Charles grouping of employees that transferred. In accordance with the principles articulated by the Court of Justice of the European Union in Botzen v Rotterdamsche Droogdok Maatschappij BV (Case 186/83), assignment must be assessed by reference to the employment relationship and the functions actually performed within the undertaking, rather than by administrative labels or temporary contingencies; in this case a site ban.

Applying those principles to the facts of this case, I am satisfied that the Complainant was assigned to the Client contract. The evidence establishes that her contract of employment identified that site as her place of work, that her duties and roster were organised exclusively around that contract, and that she formed part of the same organised grouping of employees who transferred to the Respondent. In oral evidence, the Respondent’s witness, Thomas Burgoyne, accepted that all other available employees assigned to the Client contract transferred.

The Respondent contends that the Complainant was not assigned at the material time because she was absent from the workplace and because she had been site-barred by the Client. I do not accept that submission. Temporary absence from work does not displace assignment. The Court of Justice has confirmed that the decisive criterion for the application of Directive 2001/23 is the existence of an employment relationship at the date of the transfer, and that the fact that an employee is absent from work or temporarily unable to perform duties at that moment does not, of itself, exclude that employee from the scope of the Directive, provided the employment relationship continues under national law. In Piscarreta Ricardo v Portimão Urbis (Case C-416/16), Mr Ricardo’s employment contract was suspended (he was on unpaid leave/secondment under Portuguese law) before the undertaking transferred. The transferee argued that because the contract was suspended at the time of transfer, he was not an employee who transferred under the Acquired Rights Directive. The Court held that the protection afforded by Article 3(1) applies to employees whose contracts are suspended at the time of transfer. In the present case, the Complainant’s contract of employment remained in force at the date of transfer, she was on sick leave at the time of the transfer, and there was no evidence that her assignment or employment had been lawfully terminated prior to that date.

Can a site-bar by a client company disapply Regulation 4(1)?

The automatic transfer of employment is not contingent upon the transferee’s immediate ability to deploy the employee to a particular site. The Court of Justice made clear that the protective operation of Directive 2001/23 cannot be defeated by the organisational or operational imperatives of the transferee. In Piscarreta Ricardo the Court confirmed that the automatic transfer of employment rights under Article 3(1) is not contingent upon the transferee’s internal organisation or restructuring requirements. Nor is it contingent, as in this case, on the Respondent’s ability to integrate the employee into its post-transfer operations. To hold otherwise would permit the transferee’s organisational choices to undermine the mandatory and protective purpose of the Directive.

I therefore find that the Complainant was assigned to the undertaking that transferred and that her contract of employment transferred automatically to the Respondent by operation of Regulation 4(1).

Was the Complainant’s contract terminated in a dismissal grounded in the transfer?

Having found that the Complainant transferred automatically to the Respondent, I must determine whether the Complainant was dismissed within the meaning of Regulation 5. The evidence establishes that the Complainant was not taken on by the Respondent at the date of transfer and that her employment did not continue thereafter. No alternative role was offered to her nor were redeployment options explored. The uncontested evidence was no consultation took place regarding her position.

In oral evidence, the Respondent’s People change Advisor, Ms Connolly, accepted that no assessment of alternative placements was carried out and that no contemporaneous records existed demonstrating any effort to consider reassignment. The witness further accepted that the Complainant was excluded solely based on the site bar and that this was treated as determinative. I find that this evidence materially undermines the Respondent’s assertion that reassignment was not feasible and supports the conclusion that no genuine effort was made to avoid the termination of the Complainant’s employment.

The Court of Justice has confirmed that the legal effects of a transfer occur automatically and at a fixed point in time, namely the date on which responsibility as employer passes from the transferor to the transferee. The date of the transfer was given as 7 July 2025.  In Celtec Ltd v Astley (Case C-478/03), the Court held that contracts of employment existing on that date transfer by operation of law and that the parties cannot postpone or disapply those effects by agreement or arrangement. It follows that where an employee’s employment comes to an end because the automatic transfer of their contract is not honoured, the loss of employment is causally connected to the transfer itself and constitutes a dismissal by reason of the transfer. The Complainant lost her employment because she was excluded from the transfer, and that exclusion arose directly from the Respondent’s failure to give effect to the automatic transfer of her contract.

I therefore find that the Complainant was dismissed within the meaning of Regulation 5 and that the dismissal was by reason of the transfer.

I further find that the Respondent failed to comply with its statutory obligation under Regulation 8 to inform and consult. The evidence establishes that the Complainant was not informed of the proposed transfer of her employment nor was she consulted regarding the implications of the transfer for her position. She was afforded no opportunity to engage with the process, notwithstanding that she was uniquely affected. The Complainant corresponded with the Respondent, but her correspondence went unanswered.  This failure was complete and not merely technical, and it constitutes a serious breach of the Regulations.

Findings on Complaints:

CA-00073530 -001. The Complainant claimed that the Respondent did not ensure thot her terms and conditions had transferred from her previous employer. I am satisfied that the issues raised under this complaint are fully subsumed within my findings on the related dismissal complaint CA-00073530-003, and that no separate or additional determination is required. This complaint is therefore redundant, and I make no further findings in respect of it.

CA-00073530-002: The complainant claimed that the Respondent did not observe her terms and conditions that had transferred from her previous employer. I am satisfied that the issues raised under this complaint are fully subsumed within my findings on the related dismissal complaint CA-00073530-003 and that no separate or additional determination is required. This complaint is therefore redundant, and I make no further findings in respect of it.

CA-00073530-003: The Complainant claims she was dismissed by the Respondent on the grounds of her transfer.  For the reasons outlined above, I find that the complaint was well founded in that it grounded in the transfer of undertakings contrary to Regulation 5.

CA-00073530-004: The Complainant claims that the Respondent did not consult her in relation to the transfer. For the reasons outlined above, I find that the complaint was well founded.

CA-00073530-005: The Complainant claims that the Respondent did not advise her in relation to the Transfer. I am satisfied that this complaint is fully subsumed within my findings on the failure to inform and consult CA-00073530-004, and I make no separate determination in respect of it.

 Redress

Regulation 10 deals with redress:

10.Decision under section 41 of Workplace Relations Act 2015:

A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a provision (other than Regulation 4(4)(a)) of these Regulations shall do one or more of the following, namely—

(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 the adjudication officer considers 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, in respect of the employee's employment calculated in accordance with regulations made under section 17 of the Unfair Dismissals Act 1977.

In accordance with Regulation 10 of the 2003 Regulations, I am required to award such redress as is just and equitable having regard to all the circumstances of the case. The purpose of compensation under the Regulations is to provide an effective, proportionate and dissuasive remedy for the infringement of the Complainant’s statutory rights.

The Complainant’s uncontested evidence is that her weekly remuneration at the time of the transfer was €650 net per week.

 CA-00073530-003 Regulation 5 – Dismissal by reason of the transfer

Having regard to the circumstances of this and the fact that she was the only employee excluded from an otherwise complete transfer, I consider that compensation equivalent to seven months’ remuneration, a measure based on the period between the transfer on 7 July 2025 and the date of the hearing, is fair, reasonable and proportionate.

Seven months is calculated based on 4.33 weeks per month, giving a total of 30.33 weeks.

• €650 × 30.33 weeks = €19,715

I therefore award the Complainant €19,715 as a net sumin compensation for dismissal contrary to Regulation 5.

CA-00073530-004 Regulation 8 – Failure to inform and consult.

I have found that the Respondent wholly failed to inform or consult with the Complainant on the transfer. The aggravating factor here was the admitted failure of the Respondent to reply to the correspondence of the Complainant. This was a serious breach which deprived her of the opportunity to engage with the process or to explore alternatives which might have avoided the loss of her employment. I consider that compensation equivalent to maximum four weeks ‘net remuneration is appropriate and proportionate.

• €650 × 4 weeks = €2,600

I therefore award the Complainant €2,600, as a net sum of the declared remuneration, in compensation for breach of Regulation 8.

Total Award

Accordingly, I award the Complainant a total net sum of €22,315, comprising:

• €19,715 for dismissal contrary to Regulation 5; and
• €2,600.00 for failure to inform and consult contrary to Regulation 8.

I am satisfied that this award isproportionate and dissuasive, having regard to the nature of the breaches found and the circumstances of the case.

Complaints 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-00073530-003 Regulation 5 – Dismissal by reason of the transfer.

For the reasons outlined above, the complaint was well founded, and I direct the Respondent to pay the Complainant the compensatory net sum of €19,715.

CA-00073530-004 Regulation 8 – Failure to inform and consult.

For the reasons outlined above, the complaint was well founded, and I direct the Respondent to pay the Complainant the compensatory net sum of €2,600.

European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003), Regulation 5, Regulation 8, Dismissal, Failure to Consult