Transfer of Undertakings (TUPE)

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.

Your existing employer must explain to you no later than 30 days prior to the business transfer when it will happen, why the transfer is happening and how you will be affected from a legal, economic and social perspective, including any specific measures which are being put in place. 

During any business (or part of a business) transfer or merger, there is a legal obligation under the TUPE regulations in Ireland for the new employer to take on existing staff under the same contractual terms.  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”.

TUPE is applicable whether you are an employee, apprentice, agency worker, civil servant or state employee.  TUPE is designed to ensure that employees are not unfairly disadvantaged as a result of a business transaction, and even means that the tenure period you have accrued with your existing employer is also transferred to the new employer.

The regulations mean that employees cannot be dismissed solely due to the transfer.  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 you have been dismissed, or you have been advised your role is ‘at risk’ due to a recent or pending transfer of business, contact our team of Employment law solicitors, who will be able to determine if there is a legal basis for doing so.  If not, we will seek to protect your rights under Irish Employment law.

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 to understand your options and obligations.

If you have an existing occupational pension, this will not transfer to the new employer; this means they are not obliged to continue making pension contributions on your behalf.

However, your new employer must ensure that rights conferring immediate or prospective entitlement to old age benefits, including survivor’s benefits, are protected.

This can be a complex area of law; if you have any questions regarding your pension rights, please contact our Employment Team who will take the time to listen to your situation and explain your rights in full.