Ireland

Two WRC decisions arising from the same transfer under the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003 (“TUPE Regulations”) reached different outcomes on whether the lack of confirmation by the employee re transferring amounted to a resignation by the employee. The cases are Jason Franzoni v. Hibernia Homecare Ltd (ADJ-00056751) and Charlotte O’Connor v. Hibernia Homecare Ltd (ADJ-00057021). Facts: Hibernia Homecare Ltd (the Respondent) submitted that it had to transfer its business to its parent company, Hibernia Homecare Group Ltd in order to meet the HSE requirements in the new Service Level Agreement. Formal notice was emailed to its employees on 31 October 2024 in line with the TUPE Regulations. The consultation process began on 5th November 2024. During this meeting David Wallace, Managing Director, informed the employees that they had a choice as to whether or not they wished to transfer but if they refused to transfer that this would be considered a resignation. During this meeting a small number of employees objected to the transfer in support of one of the directors who was not included in the transferee company. The meeting got heated and these employees, including both Complainants, walked out of the meeting. The Respondent appointed a mediator who represented both the transferor and transferee in the consultation meetings. A new contract was issued to the employees with the transferee named as the employer but it was on the same terms and conditions of employment. The employees were pushed to sign it but had been informed that their existing contract would transfer. The transfer deadline was extended to 31st January 2025. The employees were given until 4pm on 31st January 2025 to sign the contracts or be dismissed. At 4.01pm a notice was sent to the employees who did not sign the contract informing them that their employment had ceased. Neither Complainant signed the contract but both stated that they did not object to transferring. The Respondent acknowledged that the employees were not required to sign a new contract and could rely on their existing contracts in a TUPE transfer. The question was whether the Respondent employer could properly equate signing the new contract with consenting to the TUPE transfer. Each Adjudicator analysed this question differently and came to different outcomes. Decisions: Decision 1 - Franzoni v. Hibernia Homecare Ltd – dated 4th December 2025 Mr Fanzoni was employed as a Health Care Assistant from 9 September 2021. He claimed his employment was unfairly dismissed on 31st January 2025 because he refused to sign a new contract of employment when his role was due to transfer under TUPE Regulations. The Respondent denied dismissal and stated that the Complainant refused to transfer and thereby resigned. The Complainant relied on the wording in the Respondent’s memo of 31st October 2024 which stated that the transferring employees “will however, retain their current contracts of employment”.  The Respondent placed considerable emphasis on what is alleged that the Complainant said on 5th November 2024 meeting. While there was a dispute as to what exactly the Complainant said, the Adjudicator was satisfied that the Complainant indicated that he would not transfer and walked out of the meeting with a few other employees. The Adjudicator pointed out that this was almost 3 months before the transfer date and was stated in a heated meeting. The Respondent argued that this together with the failure to sign the new contract constituted resignation. The Adjudicator (Patricia Owens) rejected the Respondent’s argument and found that the Complainant was unfairly dismissed. The Adjudicator referred to case law in relation to establishing a genuine resignation and stated that a resignation must be clear, unambiguous and unequivocal. The Adjudicator held that if the Respondent genuinely believed the Complainant intended to resign or refuse to transfer then it would have been “reasonable and appropriate” for the Respondent to write seeking clarification of the Complainant’s position. The Adjudicator said that she was at a loss as to why the Respondent did not send a single email asking the Complainant to clarify his position. The Adjudicator criticised the Respondent for equating signing the new contract with confirming agreement to transfer, noting that there is no legal requirement for an employee to sign a new contract and also referring to the Respondent’s memo of 31st October 2024 stating that the employees would be retained on their current contracts. She stated that under the TUPE Regulations, a transferee or transferor is not entitled to insist that an employee sign a new contract and held that refusal to sign did not amount to resignation and did not provide any fair or lawful basis for termination. Although the Adjudicator acknowledged the Respondent acted fairly in its general consultation, she stated that it did not remove its obligation to seek clarification from the Complainant when he had not participated in some of the meetings and had not signed the contract and the alleged rejection was nearly 3 months earlier in a heated meeting. The Adjudicator found that the Complainant did not resign but was unfairly dismissed and awarded him 13 weeks’ pay. Decision 2 – O’Connor v. Hibernia Homecare Limited dated 18th November 2025 Ms O’Connor was employed from 9th June 2022 until 31st January 2025. Her employment ceased when she did not confirm her willingness to transfer under TUPE. She worked 30 hours per week. The Complainant gave evidence that the memo of 31st October 2024 stated that employees would become employees of the new company and retain current contracts/terms/benefits and that there would be no redundancies/layoffs because of the change. The Complainant refused to sign the new contract and had questions about why she had to sign and was concerned it might affect her hours. The Complainant did not work on Fridays and missed phone calls on the final date. The final day communication gave employees until 4pm to confirm agreement to transfer. It is not very clear in the decision whether or not she actually stated her rejection to transferring but it appears that like in the Franzoni case, she only expressed her objection to the transfer at the meeting on 5th November 2024 and not again afterwards. The Adjudicator found that she had resigned and relied on TUPE case law in relation to objection to transferring. Interestingly, the Adjudicator found that the Complainant effectively resigned because “she persistently refused to confirm willingness to transfer even though there was no change to her terms and conditions” (emphasis added).   The Complainant stated in evidence that other than signing the contract she did not know how else to confirm her willingness to transfer. The decision does not find that the Complainant “refused to transfer” which is what is referred to in TUPE case law to amount to a resignation. The Adjudicator was satisfied that the Complainant was not dismissed but resigned and therefore could not be unfairly dismissed. Takeaway for Employers: It is clear from these decisions that an employer involved in a TUPE transfer should not require the signing of a new contract as the method of indicating that the employee is not objecting to transferring. An employee is not required to consent to the transfer but has the option to reject or ‘opt out’ of transferring which needs to be clearly communicated to the employer. Where an employer believes an employee is refusing to transfer, it should seek clear written clarification from that employee. Remember resignation must be clear, unambiguous and unequivocal and should be in writing. Resignation in the heat of the moment can also be retracted. Ensure communications during the consultation period are consistent and clear and if refusal to transfer is going to be treated as resignation, ensure that this is clearly communicated to the employees well in advance of the transfer date in writing and that there are not contradictory messages sent to the employees. It should be noted that the first decision above is the most recent of the two decisions. It will be interesting to see if this is followed when this arises again. Links  - ADJ-00056751; ADJ-00057021 Authors – Anne O’Connell 21st January 2026 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie

Tony Molloy v Kaefer Limited (ADJ-00053834) is a recent unfair dismissal case that was before the Workplace Relations Commission (“WRC”). The Complainant brought the complaint under the Unfair Dismissal Acts 1977-2015 (the “Acts”) claiming his dismissal was both procedurally and substantively unfair. The Respondent denied this and claimed that his dismissal was necessary because it was impossible for the Complainant to continue in his role due to its client’s insistence that he be removed from their site. Facts: The Complainant was employed by the Respondent from 17th October 2016 until his dismissal on 29th May 2024. He was employed as a mechanical technician/fitter and was based on a site managed by a primary client of the Respondent since the beginning of 2024. Under the commercial contract between the Respondent and the client in question, the Respondent, through the Complainant and his team, completed specified mechanical works as outlined in permits issued by the client. The Respondent submitted that on 26th April 2024, and in the following days, the Complainant repeatedly refused to take responsibility for the permits or carry out duties as a permit holder, despite ongoing requests from his supervisor and other members of management. The Complainant gave evidence that his refusal was due to the recent initiation of the disciplinary procedure against a colleague because of a defect under such a permit and his belief that the permit process conferred an unacceptable level of liability upon him (regardless of the cause of the defect itself). He wanted his concerns addressed before he took up these duties again. The Respondent told the WRC that the Complainant was suspended with immediate effect from 15th May 2024 following his continued refusal to perform his duties. The Complainant emailed an apology to the Respondent following his suspension, accepting that his actions had been unacceptable. The Respondent intended to proceed with a disciplinary process, however prior to the scheduled disciplinary hearing the client issued the Respondent with  a formal letter requesting the Complainant’s removal from their site on an indefinite basis. The Respondent gave evidence that they asked the client to reconsider, but the client refused and insisted that the Complainant be removed from site. The Respondent submitted that they were contractually obliged to follow this directive and for that reason, they made the decision not to pursue the disciplinary process. They dismissed the Complainant and communicated this to him in correspondence on 29th May 2024. The Respondent’s Operations Manager gave evidence that their preferred outcome from the disciplinary procedure would have been a disciplinary sanction short of dismissal and the imposition of a Performance Improvement Plan (“PIP”), however the client’s reliance on a pre-agreed contractual term “forced their hand”. Evidence was given on behalf of the Respondent that they increased the Complainant’s notice pay from four to eight weeks as a gesture of goodwill. The Complainant appealed his dismissal, but it was upheld. The Complainant identified a number of procedural failures on the part of the Respondent, and argued that dismissal was disproportionate. The Respondent argued that the dismissal was fair because there were other substantial grounds justifying the Complainant’s dismissal, namely the client’s refusal to have him back on site, and he was not dismissed for misconduct. Decision: The Adjudicator, Mr. Brian Dolan, found that the Complainant had been unfairly dismissed. Under the Acts, the dismissal of an employee is deemed unfair unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. There are a number of grounds that an employer can rely on to demonstrate that a dismissal was substantively fair under section 6(4) of the Acts. A further basis on which an employer can rely in defending an unfair dismissal claim is contained in section 6(6) which provides as follows: “In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.” [our emphasis].   The Adjudicator noted that section 6(6) is often invoked by employers seeking to justify dismissal in circumstances where a client refuses to permit an employee on site, arguing that this amounts to  “other substantial grounds” under that subsection. The Adjudicator noted the client in question was a primary source of work for the Respondent. However, the Adjudicator referred to a series of decisions addressing the reliance on “other substantial grounds justifying the dismissal” by employers experiencing pressure from third parties to remove employees from their sites. He pointed out that these authorities have established an onus on employers in these circumstances to consult with the third party, advocate on behalf of their employee, and consult with the affected employee on other roles that may be available in their organisation. In Merrigan v Home Counties Cleaning Ireland Ltd (UD904/1984), the Employment Appeals Tribunal (“EAT”) (as it then was) found that “The job of an employee cannot be at risk on the mere whim of a third party to the employment relationship”. In Derek Hevey v Provincial Security Services Ltd (UD447/2011), the EAT found that a Respondent “…will be expected to show that it has concluded an investigation into the reasons for the refusal of the respondent’s customer to have the claimant work on the site.” In An Employee v An Employer (UD205/2010), the EAT held that: “Every case must be considered in the light of its own particular facts. The dismissal of an employee brought about through pressure from third parties whether customers, clients, fellow employees or others may be justified provided the employer acts fairly and handles the procedure and investigation properly.” In the present case, the Adjudicator found that the Respondent could not rely on section 6(6) of the Acts and held that the Complainant was unfairly dismissed. The Adjudicator observed that it seemed apparent that the Respondent simply accepted the client's decision to remove the Complainant at face value and did not appear to advocate on his behalf. While evidence was given that the Respondent did speak with the client in this regard and asked them to reconsider, the Adjudicator found that the Respondent’s efforts were inadequate. The Adjudicator awarded compensation to the Complainant. In relation to the level of the award, the Adjudicator commented that “it is clearly apparent that the Complainant viewed his own behaviour as unacceptable and in consideration of the factual matrix presented by the parties, it is clear that these issues directly contributed to his dismissal.” The Adjudicator awarded €10,000 in compensation, taking into account the Complainant’s contribution to his own dismissal and his efforts to mitigate his losses. Takeaway for Employers: This case highlights the obligations on employers who are faced with a decision by a client not to permit one of their employees back on site. This type of scenario can pose a significant problem for employers in circumstances where the employee in question works primarily, or exclusively, on that client’s site. Such a decision does not always arise in response to a misconduct or performance issue, making it very difficult for employers to address in line with their policies. Even where there are misconduct or performance issues, employers are often placed in a difficult position when clients refuse to permit an employee to remain on site while they conduct an investigation or disciplinary process What is clear from the case law in this area, including this decision, is that employers have obligations to their employees that cannot be circumvented because of a client’s directive. What will be appropriate in one situation may not be suitable in another and employers need to ensure that their approach and response is tailored to the particular facts and circumstances. It is advisable for employers to seek legal advice as this can be a complex area. Links: https://www.workplacerelations.ie/en/cases/2025/december/adj-00053834.html You may also be interested in our previous article on a WRC case involving dismissal of an employee arising from a cancelled SLA. Link available here . Authors – Tara Kelly and Jenny Wakely   27th January 2026 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2 www.aocsolicitors.ie

As we journey into 2026, it's timely to reflect on some key developments and noteworthy cases that shaped Irish Employment law last year. Minimum Wage The start of 2025 saw an increase in minimum wage to €13.50 per hour.  From 1st January 2026 it has increased further to €14.15 per hour. Gender Pay Gap Reporting  2025 saw gender pay gap reporting requirements extended to employers with at least 50 employees. Employment (Contractual Retirement Ages) Act 2025 This new legislation provides for a process whereby employees whose contract of employment specifies a retirement age below the state pension age (currently age 66) may notify their employer that they do not consent to retire at that age. There are certain notification requirements and on receipt of the notification, the employer must not enforce the contractual retirement age before providing the employee with a “reasoned written reply”. The new legislation was signed into law by the President just before Christmas 2025 however the provisions are not effective until such time as the Minister of Enterprise, Trade and Employment makes the necessary commencement order. Further details can be found in our Article, written on the first publication of the new Bill. General Scheme of the Equality (Miscellaneous Provisions) Bill 2024 The Bill proposes a number of noteworthy amendments to equality legislation. Further details can be found in our Article. However, significant amendments to these proposals are expected. WRC Looks Past the Corporate Veil  In Paul Lingard v Randridge International Ltd (In Examinership) (ADJ-00053934), the Workplace Relations Commission (“WRC”) found that a contractor satisfied the test for an employee set out by the Supreme Court in Revenue Commissioners v Karshan Midlands (Ltd t/a Domino’s Pizza) [2023] IESC 24. Although the contractual relationship was between two limited companies, the WRC looked behind this arrangement and found that there was a “contract of services”, i.e. an employment relationship. Further details can be found in our Article. Debenhams Case - High Court The High Court reversed a decision of the Labour Court which found Debenhams Retail Ireland owed their former employee €1,140 for a breach of its obligations in relation to collective redundancies. The Labour Court found that the Respondent employer had failed to commence the consultation process in good time and that by delaying the consultation until after the liquidators had been appointed, they had limited the options available in terms of coming to an agreement. However, the High Court found there was no evidence put before the Court of any options being lost or unavailable as a result of the 8-day delay. The High Court also found that a consultation process can start in advance of the first consultation meeting and took into account the surrounding circumstances (Covid-19 restrictions, Easter Bank Holiday weekend). Further details can be found in our Article. Employer Found Not to be Data Controller of Non-Work Related Personal Data The High Court upheld a decision of the Data Protection Commissioner (“DPC”) dismissing a complaint in relation to the HSE hack in 2021. The Applicant had discovered his personal email accounts had been compromised as well as his personal cryptocurrency account. The Applicant believed his work mobile phone was the source of the hack. The DPC decided that the HSE was not a “data controller”, within the meaning of that term in article 4.7 of the General Data Protection Regulation (EU) 2016/679 as the HSE did not authorise use of personal data on the work phone under their Acceptable Use Policy. Further details can be found in our Article. Significant Award for Breaches of Organisational of Working Time Act The WRC made an award of €34,999.99 for multiple breaches of the Organisation of Working Time Act 1997. The Complainant gave credible evidence he was not afforded his daily and/or weekly rest periods and worked in excess of the maximum weekly working hours set out under the 1997 Act. This decision was noteworthy in circumstances where the Adjudicator found that the Complainant’s working hours were determined by the needs of the business (he was a Chef) notwithstanding that the Complainant was responsible for rostering his own hours. Further details can be found in our Article. Significant Decisions Upholding Mandatory Retirement Ages:  2025 saw some noteworthy decisions from the WRC and the Labour Court in which mandatory retirement provisions were upheld.  In August, 2025 the Labour Court overturned the WRC decision which found that Mr Tom Ronan was discriminated against on the grounds of age when he was forced to retire at 70. This case had an interesting background as Mr Ronan was successful in his High Court application for an interim injunction requiring the Garda Commissioner to immediately re-engage him as a civilian driver pending the outcome of his proceedings. However, his application for an interlocutory injunction (to continue the interim order) was refused by the High Court, who found the appropriate route to pursue his claim was the WRC and Labour Court and that it would not be appropriate for the High Court to “trespass” on this statutory mechanism (a link to our Article on this aspect of the matter is also found below). The Labour Court noted that it was bound by the Supreme Court decision in Mallon v The Minister for Justice, Ireland and the Attorney General [2024] IESC 20 in which Mr Justice Collins emphatically endorsed the State’s decision to apply a mandatory retirement age of 70 to the majority of public servants.  Further details can be found in our Article.  Further details on the High Court Application can be found in our Article.  In October, 2025, the WRC upheld the enforcement of a mandatory retirement age provision by Eircom Limited where it determined Eircom had acted reasonably in accordance with its Retirement Policy and the mandatory retirement age was objectively and reasonably justified by legitimate aims. Further details can be found in our Article. Supreme Court Recognised Claim for Damages for Emotional Stress as a Result of a Data Breach But Not as a “Personal Injury” Claim The Supreme Court considered whether a claim for emotional distress as a result of a data breach falls within the statutory definition of “personal injury” and whether obtaining PIAB authorisation to initiate proceedings was required. It found that such a claim did not come within the definition of a “personal injury” claim. It was held the Plaintiff had a standalone claim for non-material damage pursuant to s117 of the Data Protection Acts. Mr. Justice Brian Murray also held that where a plaintiff’s claims are solely for mental distress, upset and anxiety that the plaintiff cannot expect anything other than very, very modest awards. Further details can be found in our Article.   Pension Auto-Enrolment The Government’s new statutory retirement savings system, MyFutureFund, went live from 1st January 2026. Employees are automatically enrolled if they are between 23 and 60 years of age, earn €20,000 or more per year and are not in “exempt employments”. Late in 2025 many employers were conscientiously preparing for this go-live date, especially upon the opening of the MyFutureFund Portal in December. New regulations were introduced relatively suddenly at the end of 2025 (and are already in effect since 1st January, 2026) setting out minimum standards that must be met in respect of contributions to occupational pension schemes and PRSAs in order for employments to be “exempt” from autoenrollment to MyFutureFund. See more about pension auto-enrolment in our original Article and January update here. A Quick Look at Noteworthy EU Developments… In the case of G.L. v AB SpA (C-38/24) the Court of Justice of the European Union (“CJEU”) ruled employers are required to provide reasonable accommodation to employees who are caregivers of their child with a disability. This decision broadens the protections for caregivers and the concept of discrimination “by association”. Further details can be found in our Article. The full judgement dated 11 September 2025 can be found here. On 11 November 2025 the CJEU annulled part of the Adequate Minimum Wages Directive while confirming the validity of the majority of the Directive. Article 5(2) and 5(3) of the Directive were found to constitute direct interference by EU law in the determination of pay and so were annulled. This judgement will likely require an update to the European Union (Adequate Minimum Wages) Regulations 2024 (S.I. No. 633 pf 2024). However, the judgement did not impact the promotion of collective bargaining, as required by the Directive. This is underway in Ireland with the publication of Ireland’s Action Plan to Promote Collective Bargaining 2026-2030 in early November 2025. Further details can be found in our Article. The full judgement can be found here. Authors – Tara Kelly, Ethna Dillon and Laura Killelea 27th January 2026 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2 www.aocsolicitors.ie  

“MyFutureFund” Ireland’s new auto-enrolment pension system is now in effect as of 1st January automatically enrolling “eligible” employees. While many employers were prepared for this development, what came as a surprise were the further regulations signed into law on 22nd December, 2025 (S.I. No. 668/2025 - Automatic Enrolment Retirement Savings System Regulations (Amendment) (Section 52) Regulations 2025, hereafter the “Regulations”). The Regulations set out minimum standards that must be met in respect of contributions to occupational pension schemes and PRSAs in order for employments to be “exempt” from autoenrollment to MyFutureFund. These Regulations setting out minimum standards had not been expected for some time. The Regulations which are already in effect since January 1st stipulate the following minimum standards. Minimum Standards For Defined Contribution Schemes and PRSAs: Employer contributions must amount to not less than 1.5% of the employee’s gross pay or €1,200 in any year, whichever is less. In addition the aggregate contributions of the employer and the employee cannot be less than 3.5% of the employee’s gross pay or €2,800 in any year whichever is less. It is important to note the reference to “gross” as opposed to base pay. This is significant as traditionally many pension contributions have been calculated with reference to an employee’s base salary. It is important to be aware that “gross” pay reflects more than just an employee’s base salary. It can include things like commission, bonus etc. Minimum Standards For Defined Benefits Schemes: Where a scheme is a defined benefit scheme continuing service in that employment entitles the employee to accrue a long service benefit. Takeaway for Employers: Employers who are treating their employee’s employments as exempt from autoenrollment to MyFutureFund on the basis of contributions being made to an occupational pension scheme or PRSA should (if they have not already done so) review the contribution levels to ensure they meet the new minimum standards. In many cases the contributions may satisfy the standards, however, where there is a shortfall, employers need to be careful about how that shortfall is addressed. Some employers are choosing to make up the short fall through an increased employer contribution in circumstances where seeking to compel an increased employee contribution from existing employees likely presents additional legal issues/challenges. Employers may also like to review the “FAQ for Employers/Agents” that is available on the MyFutureFund Website (link below). Links: https://myfuturefund.ie/employer-faq https://www.irishstatutebook.ie/eli/2025/si/668/made/en/print?q=enrolment&years=2025 Author –Laura Killelea 23 January 2025 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie