I have no plans at this time to amend the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, Statutory Instrument (S.I.) No. 131 of 2003 which give effect in Irish law to the European Directive on Transfer of Undertakings (EU Council Directive 2001/23/EC of 12 March 2001). The objective of the Directive is to safeguard the rights of employees in the event of a transfer of an undertaking, business, or part of a business, to another employer as a result of a legal transfer or merger by making it possible for them to continue to work for the transferee under the same conditions as those agreed with the transferor.
Case law has clarified the legal position in Ireland in relation to an employee who does not want to transfer to the transferee.
Regulation number 6 of S.I. No. 131 of 2003 provides that the contractual rights of employees do not transfer where the original employer is subject to proceedings whereby he may be adjudicated bankrupt, or wound up for reasons of insolvency, by order of the High Court. However, it further provides that if the sole or main reason for the institution of bankruptcy or insolvency proceedings is the evasion of an employer’s legal obligations under the Regulations, then the Regulations apply to a transfer effected by that employer.
It is a matter for a Rights Commissioner or (on appeal) the Employment Appeals Tribunal to interpret the provisions of the Regulations as they apply to any particular employment situation.
As the Deputy is aware, my colleague, An Tánaiste and Minister for Social Protection, Joan Burton, has responsibility for the Redundancy Payments Acts 1967-2014 and the Protection of Employees (Employers’ Insolvency) Acts.
