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.
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.
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