The recent case of Eanna Larkin v Premier Service Station Limited (ADJ-00053370) highlights clearly that the EC (Protection of Employees on Transfer of Undertaking) Regulations 2003 (SI 131 of 2003) or TUPE (as they are known in the UK) does not apply to share sales in Ireland.
In this case the employee (complainant) claimed while she was abroad in 2024, her workplace, Premier Service Station Ltd. transferred ownership of the company/business without her knowledge or without having given any notice to her whatsoever. She stated that she only found out about the shop being closed after receiving a message from a work colleague. The message indicated that the employees at the shop were told not to come in anymore. The employee further contended that she did not receive any written notice from the new owners.
The company (respondent) position was that Premier Service Station Limited was owned by two named persons until May 2024. In May 2024, their shares in the company were purchased by another company. However, the legal entity of the business did not change. It argued that the legal employer had not changed.
The Workplace Relations Commission (“WRC”) found that there had been no breach of the “TUPE” Regulations as there had been no change of employer (as required under the Regulations. It noted:
| The European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No 131 of 2003) defines “transfer” as follows.3. These Regulations shall apply to any transfer of an undertaking, business, or part of an undertaking or business from one employer to another employer as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger. (2) Subject to this Regulation, in these Regulations—“transfer” means the transfer of an economic entity which retains its identity;“ “economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity whether or not that activity is for profit or whether it is central or ancillary to another economic or administrative entity. The WRC concluded: A transfer of undertakings (‘TUPE’) occurs when a business or part of a business is taken over by another employer as a result of a merger or transfer. TUPE, however, does not apply where there is a sale of shares in an employing company but there is no change of employer when the shares in the company change hands. Share transfers are not covered by the Directive as there is no change in the identity of the employer Case Learning Point In general there must be an actual change of employer for the Regulations or TUPE to apply. If there is no change of employer, there may be no breach of the Regulations. If you are unsure about whether TUPE applies to your situation, please feel free to contact our office by telephone or email! |