Losing job with no redundancy

Callan

Registered User
Messages
7
Hi, I work in an IT firm and we've learned that our entire global IT department is getting outsourced to an IT Vendor.

Met with Irish HR today with regards to my role. Essentially they want me to move to the vendor company under same terms and conditions as my current contract. If I decide not to take this then its considered a resignation and there is no severance package available and I just work out my notice period.

I'm quite annoyed as all my global colleagues in UK and US have the option of moving to the vendor OR accepting a severance package. I don't understand why I'm not getting offered the same but HR were adamant they are not legally required to do this.

Is this correct ?
 

David1234

Frequent Poster
Messages
185
Your title is misleading. You are not losing your job, you are merely undertaking the same role for a different company.

I am pretty sure that your HR are correct here. There may be a number of reasons the company wishes to reduce the level of staff in the UK or US and to try and retain Irish staff. If the company thought you were looking to leave anyway they would be less inclined to offer a package.

I would wait it out for a while if you thing the potential redundancy/ex gracia payment is worth it as they may do a second round of redundancies.
 

Callan

Registered User
Messages
7
Thanks. But I won't get the opportunity of another redundancy as they've told me if I don't move to the vendor that they consider it a notice of resignation and I have to leave after my notice period with no payout. Also my role will not be a like for like in the vendor. It's on the complete opposite side of Dublin and not a viable commute which is one of the reasons why I can't take. I guess I'm frustrated as I'm the only Irish developer in the department getting outsourced, been there 13+ years and am the only person not getting the option of severance out of a global team if 100+. Am sure you can understand my frustrations.
 

thos

Frequent Poster
Messages
141
Sounds like a TUPE situation, see some detail here from William Fry, sounds like your HR dept is correct:

https://www.williamfry.com/newsandinsights/news-article/2012/09/14/employee_rights_on_business_transfers

Employees’ Refusal to Transfer

While the European Court of Justice has stated that employees are entitled to refuse to transfer to employment with the transferee, the legal effect of that objection on the contract of employment is a matter for each member state. This situation was not legislated for in the Regulations. As a result, in Ireland, differing positions emerged as to how a refusing employee should be treated.

One view was that a refusal to transfer on the employee’s part meant in effect that the employee remained in the employment of the transferor, which, frequently having no option but to make the employee redundant, would then be liable for payments under the Redundancy Payments Acts. The alternative view was that refusal to transfer (where the transferee is offering the same terms and conditions as distinct from where there are substantial changes to an employee’s detriment) effectively constitutes a resignation, whereupon an employee disentitles him or herself to a redundancy payment.

A 2009 High Court decision in Ireland brought welcome clarity on this issue.

The case concerned employees who had refused to transfer upon their employer selling the part of its business to which they were assigned. The employees claimed that they had been made redundant and were entitled to statutory redundancy payments. At first instance, the EAT held that the employees remained employed by the transferor. Consequently, if the transferor was not in a position to redeploy them, the transferor would be liable for the ensuing redundancy payment.

In May of 2009, the High Court overturned this decision, holding that refusal to transfer does not result in an employee being deemed redundant but in fact of having resigned. Therefore, the employee is not entitled to any redundancy payment, statutory or otherwise.
 

newtothis

Frequent Poster
Messages
542
Also my role will not be a like for like in the vendor. It's on the complete opposite side of Dublin and not a viable commute which is one of the reasons why I can't take. I guess I'm frustrated as I'm the only Irish developer in the department getting outsourced, been there 13+ years and am the only person not getting the option of severance out of a global team if 100+. Am sure you can understand my frustrations.
This sounds like there is a change in your terms and conditions, which is not something that can be done as part of a TUPE. Note that terms and conditions may include items that aren't explicitley mentioned as part of your contract.

There are very strict regulations that apply for TUPE. As a starting point, see:

http://www.citizensinformation.ie/en/employment/employment_rights_and_conditions/contracts_of_employment/transfer_of_business.html

A couple of points:

- has your employer gone through all they should have done for TUPE (period of consultation etc.)?
- have you agreed to any changes?

If I were you, I would get professional advice, either from a union or from a specialist HR company. An hour or two's consultancy with a specialist would be worth it. Do not forget that the HR department of your employer's main concern is to protect the company, not to help you.
 

RETIRED2017

Frequent Poster
Messages
772
I don't really know the position, But my understanding was where a company was bought out as a going concern the above would apply ,I suspect the op position where the work is outsourced and you have to move employer/ location is not the same

but i stand to be corrected,
Remember the new company under TUPE would also have to take over 13 + years severance package and pay it out if the were let go in the future,
If Callen was to transfer and it was done under TUPE I think there is some clause about not letting him go for two years

Normally the new employers would insist on being paid more than the severance package Callen would get from his present employer for taking over his service

It is quite possible new company are looking to keep Callen he would need to be sure his present service is protected,
The may look at paying him Redundancy if the think he would take up the new job rather than pay his new employer for his service so he should be careful about what he is saying about not taking new position,
you should be coming at it from the angle someone is going to have to be paid for taking over his service ,
You need to have it in writing from the company what you have poster above for starters,

Most Unions even if you are not a member would be in a position to advise they would know the law in Callen position,
 
Last edited:

Callan

Registered User
Messages
7
Thanks for the advice guys. I have found out this morning that one of my colleagues in the UK was also requested to move to the vendor company, but was told if they did not want to take that option, then a redundancy package was also available. My understanding is the above TUPE situation would also be applicable for UK, maybe London HR are just taking a more generous approach to the outsourcing process. Either way am going to get outside counsel. If anyone has any recommendations for legal advice for scenario such as this please PM me, or if you know of any unions who offer free legal advice that would be great also.

Thanks.
 
Top