In Kathy Coleman v Cáirde Credit Union Ltd (ADJ-00054649), the Complainant brought a number of complaints  alleging  that the Respondent  breached the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (“TUPE Regulations”). The Complainant alleged that the Respondent unilaterally changed the terms and conditions of her employment and had dismissed her through a sham redundancy process in breach of the TUPE Regulations.

Facts:

The Complainant was  employed by Lismore and Cappoquin Credit Union (“Lismore”) as an Office Assistant since 3rd December 1996 until a merger with Cáirde Credit Union in January 2023 when her employment was transferred to the Respondent (the Transferee) under TUPE regulations. Since commencing employment with Lismore, the Complainant held a number of contracts of employment. At the time of the transfer of her employment the Complainant worked three days per week which was set out her in contract of employment:

“Your normal working week is 21 hours working Monday, Thursday and Friday but you may be required to work overtime from time to time to meet the needs of the position… The Credit Union reserves the right to alter the working hours, but any such change will be affected in consultation with you.”

It was submitted that as part of the transfer, the Respondent agreed to issue new contracts of employment to transferring  employees which contained the same terms and conditions of employment. Several months after the transfer, the Respondent provided the Complainant with a new proposed contract of employment. The Complainant contended that this new contract attempted to unilaterally amend her terms and conditions of employment. Specifically, the Complainant contended that the proposed contract:

  • Changed her job title to Teller/ Office Assistant and changed her line manager from Manager/Deputy Manager to “Team Lead”.
  • Her new contract did not set out the days of work as agreed in her previous contract. The proposed new contract set out her days of work as Monday – Friday 9:15am – 5:15pm and Saturday 9:15am – 4:15pm
  • Her contract did not clearly set out her place of work. The contract stated that her normal place of work would be Lismore, or any other offices owned and operated by the Respondent.

The Complainant disputed these changes to her contract. In a subsequent consultation meeting between the Complainant and the CEO of the Respondent regarding the proposed changes, the Complainant submitted that she was informed that she may be required to work Saturdays in a different branch owned by the Respondent. She objected on the basis that she had not been required to work on Saturdays and had not been required to work in a different location prior to the transfer.

The Complainant and Respondent could not reach agreement on the proposed changes. The Complainant was then informed that if she did not accept the changes that she would  be placed at risk of redundancy. There was correspondence between both parties disputing whether the Complainant would be made redundant due to her opposition to the changes. In a letter to the Complainant on 30th August 2024, the Respondent informed her, “Cáirde Credit Union has a requirement for you to work on a Monday to Saturday rota which will entail you being placed on a roster to work every third Saturday….in any of Cáirde Credit Union’s offices and for other ancillary amendments to your terms of employment”. The Complainant submitted that this letter also stated that if she did not accept this requirement, she would be placed at risk of redundancy. The Complainant did not accept the changes and was placed at risk of redundancy but was ultimately never made redundant.

The Complainant submitted that the Respondent’s conduct breached its obligation under Regulation 4, which requires the Transferee to observe the same terms and conditions that had been in effect with the Transferor. The Complainant further submitted that the Respondent had breached Regulation 5 in its attempt to dismiss her through a sham redundancy process when she opposed the changes to her contract.

The Respondent submitted that it had fully complied with its obligations under TUPE Regulations. The Respondent submitted that the Complainant’s contract contained two variation clauses, specifically:

“Place of Work: You will normally be required to work at Main Street Lismore, but you may be required from time to time to work at other locations. You will be given as much notice of any change to place of work as is reasonably practicable”

“Changes to Terms of Employment: The Board reserves the right to make reasonable changes to any of your terms and conditions of employment set out in this contract, the job description attached, and should this occur, you will be notified in advance in writing, of the nature and date of change”

It contended that it did not unilaterally change the Complainant’s terms and conditions in breach of TUPE Regulations. Instead, it sought to change the Complainant’s terms and conditions in accordance with the variation clauses in her contract to assist it coping with an increase of business in another branch. The Respondent submitted that it had made efforts to make changes in consultation with the Complainant. The Respondent maintained that when the Complainant disputed the proposed changes, no changes were imposed on her and as such, no breach of TUPE Regulations occurred.

Decision:

The Adjudicating Officer, Gaye Cunnigham, found the Complainant’s claims that the Respondent had failed to observe the terms and conditions of employment transferred by her previous employer, and that the Respondent had unilaterally changed her terms and conditions of employment.

The Adjudicator accepted the Respondent’s position that in line with the judgment in Foreningen af Arbeidsledere I Danmark v Daddy’s Dance Hall A/S, the Respondent as the Transferee inherited contractual rights from the Transferor and sought to “stand in the shoes of the Transferor” in its efforts to amend the terms and conditions of employment. It was noted that the Complainant’s existing contract provided some flexibility for certain alterations but only   in consultation with the employee. The Adjudicator noted the Respondent’s submission that it had not unilaterally changed her terms and conditions of employment and that it had engaged with the Complainant for the purposes of seeking her agreement but the Complainant had clearly objected to the change.  The Adjudicator was satisfied that the letter of 30th August 2024 outlining the “requirement” for the Complainant to work on Saturdays imposed a fundamental change to her terms and conditions of employment that had not existed pre-transfer. The Adjudicator found that this constituted a fundamental change to the terms and conditions of employment, which was in breach of Regulation 4(1).

Regarding the Complainant’s claim that her employment had been terminated by reason of sham redundancy under TUPE Regulations, the Adjudicator did not find this claim to be well-founded. Although there was correspondence between the parties about making the Complainant’s role redundant, no dismissal had been  affected.

Th Adjudicator directed the Respondent to pay €10,000 to the Complainant for compensation of its breach of TUPE Regulations and directed the Respondent to comply with its obligations under Regulation 4.

Takeaway for Employers:

TUPE is a complex area of employment law which can be difficult for employers to successfully navigate. This case demonstrates how challenging it can be for employers to satisfy its obligations under TUPE Regulations and the importance of ensuring that a Transferee observes the existing terms and conditions of employment at the point of transfer and ensure that this remains for a period post-transfer. Where there is a change of legal ownership of a business or a merger of business, employers should note that TUPE may arise. Where it arises, employers should ensure that they strike a balance between commercial and operational needs and be aware of their legal obligations to the impacted  employees. It is prudent for employers to seek legal advice in relation to same to ensure that they do not fall foul of the TUPE Regulations.

Link – https://www.workplacerelations.ie/en/cases/2025/may/adj-00054649.html

30th June 2025

Anne O’Connell

Solicitors

19-22 Lower Baggot Street

Dublin 2.

www.aocsolicitors.ie

More from Anne O'Connell Solicitors