October 14, 2021
Budget 2022 was announced on the 12th October, 2021. It is Minister for Finance, Paschal Donohoe’s fifth budget and the second of the coalition government between Fianna Fáil, Fine Gael...
Transfer of Undertakings for Employers
The European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 (TUPE) exists to protect the staff of any business which has been purchased or is merging with another business entity. It ensures employees are not unfairly disadvantaged as a result of the business merger or acquisition.
Whether you are the new or existing employer, it is important to understand and follow the TUPE regulations to avoid potential claims, complaints, and reputational damage.
Under the TUPE regulations, the new employer is legally obliged to take on the existing staff of the purchased or merging business – under the same contractual terms. In addition, the employee’s tenure period accrued with their existing employer is transferred to the new employer.
The regulations state:
“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”.
It is important to note that the TUPE regulations do not just relate to full-time employees; part-time workers, apprentice, agency worker, and civil servant/state employee are all included.
In some cases, the new employer may not have the need for all staff from the purchased or merging business. The TUPE regulations mean that employees cannot be dismissed solely due to the transfer. Doing so is likely to attract a claim of unfair dismissal by the employee.
This, however, does not mean that dismissals will not occur for other reasons, such as specific positions being made redundant for other economic, technical or organisational reasons.
If your organisation has a genuine reason not to take on the full complement of employees as part of an acquisition or merger, then it is important to proceed with caution. It is recommended to seek the guidance of an employment law Solicitor who is experienced in redundancy in the context of TUPE. Taking the time to get this right now will avoid potential legal disputes, costs, reputational impact, and damage to staff morale.
Existing occupational pensions do not need to transfer from business to business. Therefore, as the new employer, you will not be legally required to pay into any existing occupational pension. You will, however, need to ensure that any employee rights relating to immediate or future entitlement to old age benefits (including survivor’s benefits) are protected.
Given the complexity of this area of law, it is advisable to seek professional advice from a TUPE Solicitor in Ireland, to understand your options and obligations.
Lavelle Partners work with Talbot Pierce to provide a seamless service in respect of Human Resource Management. Talbot Pierce are a team of specialist HR professionals who work with us on a range of matters including advice on and delivery of conflict/dispute resolution solutions, best-practice HR strategies, policies and procedures.
For further information on transfer of undertakings protection of employment in Ireland, please contact Lavelle Partners in confidence on (01) 644 5800*.
*Please note that fees apply to all consultations and advice cannot be given free of charge.
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