Page 63 - Workplace Relations Guide to Employment Law

Workplace Relations Commission -
Guide to Employment, Labour and Equality Law

12 Other Relevant Provisions

Transfer of Undertakings pension schemes outside the Social Welfare
Acts. In effect, such pension rights in place
on the date of transfer do not transfer across
THE REGULATIONS to the new contract but are protected under
the Pensions Acts 1990 to 2003 – where the
The European Communities (Protection of relevant supplementary company pension
Employees on Transfer of Undertakings) scheme is an occupational pension scheme
Regulations 2003 aim to protect the within the meaning of those Acts (i.e. an
contractual rights of employees in respect of approved pension scheme). In relation to
their employment in the event of the transfer unapproved occupational pension schemes,
to another employer of the business or part the transferee (new employer) is required to
of the business in which they are employed.
“protect” the rights of employees in such cases.

TRANSFER OF CONTRACTUAL
RIGHTS/OBLIGATIONS DISMISSAL
The Regulations provide that the rights and An employee may not be dismissed by reason
obligations of the original employer (“the of the transfer of an undertaking. Dismissals
transferor”) arising from an employment for “economic technical or organisational
contract existing at the date of a transfer reasons entailing changes in the workforce”
shall, by reason of such transfer, be transferred are, however, not prohibited.
to the new employer (“the transferee”).
Furthermore, the transferee must continue to If an employee’s contract of employment
observe the terms and conditions agreed in is terminated because a transfer involves a
any collective agreement on the same terms substantial change in working conditions to
as were applicable to the transferor under the detriment of the employee, the employer
that agreement until the date of termination concerned is regarded as having been
or expiry of the agreement or the entry into responsible for the termination.
force of another collective agreement.
EMPLOYER’S INSOLVENCY
PENSIONS EXCEPTION The above obligations on the part of an
However, the above rule does not apply employer, in a transfer situation, do not
in respect of employee’s rights to old apply where the outgoing employer is
age, invalidity or survivor’s benefits under subject to proceedings whereby he could
supplementary company or inter-company be adjudicated bankrupt, or wound up (a

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