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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.