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Transfer of Business and Redundancy Entitlement?

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  • 14-01-2023 6:38pm
    #1
    Registered Users Posts: 296 ✭✭


    My current employer is planning on retiring soon and has put his business up for sale. It's a small business and I've been with them for 20+ years. I've no interest in working for the prospective new owner and considered this an opportunity to take redundancy.

    My reasoning for this is, as my employer is retiring and will obviously cease to be my employer, he has effectively terminated my contract with him and redundancy would be the next logical progression.

    However, it seems I may be mistaken in this assumption. After a little online research, it appears I have no choice.. apart from resigning and sacrificing 20 odd years of redundancy entitlements.. than to accept my contract being included in this 'transfer of business' assets.

    The only thing I could find online that relates to my situation is this from 2009:

    Employee’s Refusal to Transfer With a Business Is Resignation, Not Redundancy

    "Employees who refuse to transfer to a new employer when the business they are employed by is being transferred should be considered to have resigned from their positions and are not eligible for redundancy payments, the Irish High Court has ruled in Symantec Limited v Lyons & Leddy.

    The judgment is under appeal to the Supreme Court.

    Mr. Justice Edwards on the High Court stated that if the Irish legislature had wanted the employee’s relationship with the transferor to continue after the transfer so as to facilitate an employee in making a claim for redundancy, it could have enacted legislation to that effect.

    The Acquired Rights Directive2 provides Member States with the option to put such legislation in place. However, the Irish legislature has not done so. Accordingly, Judge Edwards concluded that he was satisfied that it was not possible for the two employees in question, who had refused to transfer, to make a redundancy claim against the transferor, Symantec Limited.

    It is settled law that an employee cannot be forced to transfer. Prior to the Symantec decision, however, there was a question as to whether the refusing employee had effectively resigned by virtue of his/her refusal to transfer or whether the employee was entitled to a redundancy payment because the transferor is no longer carrying out the work for which the employee was employed. In the Symantec case, Mr. Justice Edwards stated emphatically that in a transfer under the Regulations, "...it does not follow that if an employee decides not to transfer a situation of redundancy automatically arises vis-à-vis the transferor.” He went on to state that “It cannot do so because the fact that an employee objects to the transfer does not of itself have the effect of negativing the transfer. It is just that an employee is not obliged to continue his employment relationship with the transferee”."

    Apologies for the lengthy copy and paste.. just trying to provide clarity on my situation.

    I would really appreciate any input from those that have found themselves in a similar situation and if you have, how did you fare?

    Perhaps there has been an amendment to the legislation that I'm unaware of. If so, please enlighten me.



Comments

  • Registered Users Posts: 25,979 ✭✭✭✭Mrs OBumble


    Your job still exists in Ireland. It's not redundant.



  • Moderators, Business & Finance Moderators Posts: 10,306 Mod ✭✭✭✭Jim2007


    You are not giving up 20+ years of redundancy entitlements because you don't exist, you either decide to continue working in your job or you leave, that is unless the new owner decides to make you redundant for some reason. But given that you have worked there for over 20 years I'd say it's reasonable to assume the role is not going to go away.



  • Registered Users Posts: 18,485 ✭✭✭✭bucketybuck


    My reasoning for this is, as my employer is retiring and will obviously cease to be my employer, he has effectively terminated my contract with him and redundancy would be the next logical progression.

    Your reasoning is nuts if you ask me. I get that you want things to be different to suit your own wishes, but how does it make sense that one man retiring makes all the staff eligible for redundancy?

    Redundancy isn't just some magic word that gets people a payout, it has a meaning and definitions that actually matter.

    You aren't employed by him, you are employed by the company. Your role still exists therefore you weren't made redundant.



  • Registered Users Posts: 736 ✭✭✭Sir Galahad


    I sold my business nine years ago. Staff all transferred, a few like you thought it was the big cheque time. They were wrong.



  • Registered Users Posts: 2,232 ✭✭✭TooTired123


    Hi.

    Sorry.

    Unless the new owner is going to do away with your position, or ask you to move unreasonably far to a new location, then you are not being made redundant just because he’s retiring.



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  • Registered Users Posts: 14,577 ✭✭✭✭Dav010


    Look up TUPE regulations, it explains why your employment rights remain in place when a business is taken over by a new owner, and why it doesn’t mean your employment ends when your existing employer sells up.

    https://www.workplacerelations.ie/en/what_you_should_know/employer-obligations/transfer-of-undertakings/



  • Registered Users Posts: 296 ✭✭head82


    "Nuts". Not quite the informed advice I was hoping for. I don't think it's unreasonable for an employee to expect recompense for breach/termination of contract. In fact I deem it more 'nuts' (or nuttier if you will) that an employees contract/role can automatically be included in the sale of a company as if it was just another asset along with the fixtures and fittings.

    I appreciate that legislation provides security for those employees that wish to retain their position but I also consider it a failing in same legislation that it doesn't provide an option for an employee that is not comfortable with transferring to another employer. Other than.. 'if you don't like it..resign!'



  • Registered Users Posts: 296 ✭✭head82


    Appreciate that! From a cursory reading I'm getting the feeling that I should ensure that the terms and conditions of my existing contract are locked down tight. As it would appear that I have no input in the 'transfer of undertakings' regarding my role in the company.



  • Moderators, Business & Finance Moderators Posts: 10,306 Mod ✭✭✭✭Jim2007


    We'll give it one last go..... Your contract is with the company, separate legal entity from the owner. When the owner sells the company nothing changes for you as your contract is with the company, not the previous owner nor the new owner. That is the law and that is both reasonable and logical.

    If the new owner was to decide to merge the business of the company they have just bought into their business, sell or transfer part of the business then the TUPE rules and regulations apply. In the meantime nothing changes for you.

    If you'd prefer to not to work for a company owned by the new owner then that is up to you, but nobody is going to compensate you for a decision you made all by yourself.



  • Registered Users Posts: 296 ✭✭head82


    What's with the patronising attitude? "We'll give it one last go....." you're not talking to a 6 year old here! I asked a legitimate question in reference to where I stood in regards to my position in the change over of my employment. Majority of responses didn't directly address my concerns but I responded and acknowledged the last response from Dav010 which was at least constructive. In as much as I disagree with the legislation, I've no choice but to accept and act accordingly.

    As regards your comment.. "That is the law and that is both reasonable and logical".. I beg to differ but I'm not going down this rabbit hole with you.



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  • Moderators, Business & Finance Moderators Posts: 10,306 Mod ✭✭✭✭Jim2007


    You are not going to get the answer you want to hear period and repeating the same thing over and over expecting a different answer is 6 year old behaviour.



  • Registered Users Posts: 2,232 ✭✭✭TooTired123


    There is no doubt that, in the case of some employees, when the news of a transfer of undertakings trickles down, they quickly calculate their redundancy entitlement and have it spent in their heads before the realisation that it’s not a “redundancy situation” kicks in.

    The new owner may want to change things around a bit and let some employees go, but it’s entirely his/her choice to make.

    I have often had to explain to employees why they were not going to get any redundancy when they were retiring due to poor health (sometimes after a decision by the company doctor) or retiring to pursue caring duties.



  • Registered Users Posts: 296 ✭✭head82


    What?? Where in the above posts have I been "repeating the same thing over and over and expecting a different answer"?

    I've made two comments in reply thus far and the last one was an acceptance of the current legislation and would comply accordingly.. albeit begrudgingly.



  • Registered Users Posts: 4,001 ✭✭✭spaceHopper


    Your job moves with the sale of the company, you aren't entitled to any redundancy. If the current owner closes it down then you will be entitled to statutory redundancy and get about 24K tax free assuming there is money still in the business. You might but or might not get an ex gratia payment on top of that but as the business is closing I can't see why you would get one. 24K is not life changing money I'd preferer to have my job if I was in your shoes.



  • Registered Users Posts: 296 ✭✭head82


    Agreed! It's not a life changing sum of money. I am quite happy to remain in my current role providing it's with my existing employer. The potential new owner is someone who I would rather not be in the employ of. Which was my main motivation for opting for redundancy if it was available to me (wrongfully assumed).

    Nothing has been finalized yet so circumstances may change. But at least I know where I stand.

    Thanks..



  • Registered Users Posts: 5,866 ✭✭✭daheff


    its not so much that the employee contracts are treated as an asset as part of the sale, its to protect workers rights to be respected and provide continuation of employment for them. Otherwise companies would use M&A as a way to get rid of employees like this all the time.


    As you do not want to work for the potential new owner, then your only options are to approach HR and ask them to pay you off (they might be amenable to it) or to resign.



  • Registered Users Posts: 3,763 ✭✭✭C3PO


    You may find that the new owner will be amenable to offering you a redundancy package if you ask!



  • Registered Users Posts: 296 ✭✭head82


    Yeah, I get that the legislation in place is there to protect workers rights and provide for continuation of employment for them. And that's obviously a good thing. I just feel it was an oversight that a provision wasn't included for those employees that didn't wish to continue and an offer of redundancy was a fair option.

    As for requesting a pay off.. I can't really see it happening. If they're not legally obliged to then I doubt they would want to incur unnecessary expense. But I won't completely rule it out.



  • Registered Users Posts: 5,866 ✭✭✭daheff


    I'm not sure how the offer of redundancy is a fair offer though?


    its no different to working in any other company and not liking the boss. they aren't going to make you redundant because you don't like them.


    in any case, if you do accept a redundancy, as far as i know, this does reduce the amount of tax free money you can withdraw from your pension at retirement. so you may end up losing out longer term.



  • Registered Users Posts: 296 ✭✭head82



    Regardless of any personal feelings towards boss/new owner, I naively assumed the option of redundancy would be there in the event of a company changeover. I'm not aware of any condition in my contract that makes an allowance for the automatic transfer of my contract in a business transfer but I guess it didn't need to be included as legislation already takes it as a given.

    Although if my reading of the above example in my original post is correct.. Symantec Limited v Lyons & Leddy.. the judge did state:

    "Mr. Justice Edwards on the High Court stated that if the Irish legislature had wanted the employee’s relationship with the transferor to continue after the transfer so as to facilitate an employee in making a claim for redundancy, it could have enacted legislation to that effect. The Acquired Rights Directive2 provides Member States with the option to put such legislation in place. However, the Irish legislature has not done so."

    Hence, why I feel the lack of inclusion of a redundancy option in the drafting of the legislation was an oversight.

    As regards "how the offer of redundancy is a fair offer though?".. I suppose the definition of fairness is subjective.

    Thanks for the heads-up on the pension consequences! I need to investigate more.



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  • Registered Users Posts: 14,577 ✭✭✭✭Dav010


    Unfortunately this comes back to two misconceptions, firstly, posts are made redundant, not people. If your post still exists when the transfer occurs, then redundancy does not arise. If you think about it, if redundancy was an option associated with every sale of a business, every employee would leave, take the payment, and look for a new job. Secondly, the transfer of employee rights and benefits protected by TUPE legislation very much benefits the employee, not the new owner. If length of service and employee benefits didn’t transfer, then the new owner could change all terms of the contract or fire all staff without concern for the Unfair Dismissals Act which kicks in after 12 months. So your contract doesn’t necessarily need to state what happens if your employer sells up, the legislation is there to protect you.

    Post edited by Dav010 on


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