Employees (Provision of Information and Consultation) Act 2006

21

Notification obligations of transferor to transferee in the event of transfer of an undertaking.

21.— (1) For the purposes of this section—

“Council Directive” means Council Directive No. 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses;

“Regulations” means the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 ( S.I. No. 131 of 2003);

“transfer” means the transfer of an economic entity that retains its identity;

“transferee” means any natural or legal person who, by reason of a transfer within the meaning of the Regulations, becomes the employer in respect of the undertaking, business or part of the undertaking or business;

“transferor” means any natural or legal person who, by reason of a transfer within the meaning of the Regulations, ceases to be the employer in respect of the undertaking, business or part of the undertaking or business.

(2) A word or expression that is used in this section, and which is also used in the Council Directive or the Regulations, as appropriate, has the same meaning in this section as it has in the Council Directive or the Regulations, as appropriate.

(3) The transferor shall notify the transferee of all the rights and obligations, arising from a contract of employment existing on the date of a transfer, which will be transferred to the transferee, so far as those rights and obligations are, or ought to have been, known to the transferor at the time of transfer.

(4) A failure by the transferor to notify the transferee of any such right or obligation shall not affect the transfer of that right or obligation and the rights of any employees against the transferee or transferor in respect of that right or obligation.

(5) If—

( a) a failure of the foregoing kind consists of a failure to provide information or documents to the transferee the provision of which is necessary in order for the transferee to fulfil an obligation of the transferee owed to an employee,

( b) the transferee is, in proceedings finally determined under the Regulations, required by a decision of a rights commissioner or a determination of the Employment Appeals Tribunal to pay an amount of compensation to that employee in respect of a complaint that the transferee has not fulfilled that obligation, and

( c) the transferee has paid that amount of compensation to that employee,

then, subject to subsection (6), the transferee has a right of action in any court of competent jurisdiction to recover from the transferor such proportion of that amount of compensation as the court determines to be attributable to the failure of the transferor to provide the information or documents concerned.

(6) An action under subsection (5) shall not lie unless it has been preceded by—

( a) service of a notice in writing on the transferor—

(i) indicating, in everyday language—

(I) the particular obligation the transferee considers he or she owes to one or more employees of the transferee, and

(II) the class of information or documents that the transferee believes may be in the possession or under the control of the transferor (and which is not also in the possession or under the control of any of the employees of the transferee), being information or documents of a class which the transferee considers an employer must possess in order to fulfil the obligation concerned,

and

(ii) requesting the transferor to provide to the transferee, within a specified period (not being less than 21 days beginning on the date of the service of the notice), information or documents falling within that class of information or documents,

and

( b) compliance by the transferee with any reasonable request in writing of the transferor for further details to be furnished to the transferor as to the particular items of information or documents that are being referred to in that notice (and any period which elapses before that request is complied with shall not be reckoned in calculating the period specified in that notice).

(7) An action under subsection (5) shall, for the purposes of this section and any other enactment, be regarded as an action founded on quasi-contract.

Annotations:

Modifications (not altering text):

C1

Prospective affecting provision: functions transferred and Employment Appeals Tribunal construed by Workplace Relations Act 2015 (16/2015), s. 66, not commenced as of date of revision.

Transfer of functions from Employment Appeals Tribunal

66.(1) (a) All functions that, immediately before the dissolution day, were vested in the Employment Appeals Tribunal are transferred to the Commission in so far as they relate to any claim for redress, dispute or complaint determined by the Employment Appeals Tribunal under an employment enactment before that day.

(b) All functions that, immediately before the dissolution day, were vested in the Employment Appeals Tribunal are transferred to the Labour Court in so far as they relate to appeals determined by the Employment Appeals Tribunal under an employment enactment before that day.

(2) (a) References in any enactment or instrument under an enactment to the Employment Appeals Tribunal in so far as they relate to a function transferred by paragraph (a) of subsection (1) shall be construed as references to the Commission.

(b) References in any enactment or instrument under an enactment to the Employment Appeals Tribunal in so far as they relate to a function transferred by paragraph (b) of subsection (1) shall be construed as references to the Labour Court.

(3) This section shall come into operation on the dissolution day.