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Transfer Undertakings (Directive 2001/23/EC (Objectives (protection of…
Transfer Undertakings
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Insolvency
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Ireland
2003 Regulation 6E
compulsory liquidation under s569(e) of CA 2014 0 wound up by court - unable to pay for debt - court supervision
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Becomes the employer
Share takeover problem
Brookes v Borough directive left manner untouched, kept only name of business changed everything else (new board)- directive did not apply as no new employer
ICA Management v Barry
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acquired shares, old management team and name retained
taken over day to day running, - no new owner stepped in - directive didn't apply
key elements
Avoidance problem
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ADI v Willer right to carry on security service transferred, security staff not retained, principle reason cannot be to avoid the directive - constructively acquired the staff
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economic entity
Oy Liikene awarded 7 bus routes, took previous drivers on less favourable T&C, did not take buses - where tangible assets contribute significantly to performance absence of those assets means no acquisition of economic entity
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Labour Intensive
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Ivana Scattolon v Ministero school cleaner, cleaning staff transferred, none of the activities required significant assets - if activity is manpower - then acquisition of man power is acquisition of economic entity
Hermo v Esabe security guard in museum, labour intensive economic entity
Overpass v O'Gorman irish example NUIG RA, did not require physical assets
transfer
indirect
Daddy Dance hall transpher in two phases does not exclude directive applying- what matters is old employer being superseded by new one
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retained identity
Morris v Smart Bros added female fashion, retained identity
Walsh v Denford Taverns old man pub, wanted to decrease age, younger bar tenders - core business remained the same - retained identity
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Defence
economic, technical, organisational
Kavangh v Crystal Palace 25 dismissed, if not done would face liquidation, economic reason - enable company to carry on
different job content Crawford v Swinton Brokers working from home and typing insurance - to working in office and selling insurance - organisational
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clarifying distinction
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Abler v Sodexho catering contract to supply hospital, acquired premises and equipment but not staff - not staff based so asset reliant
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didn't purchase stock or workplace - not necessary to acquire workforce - directive applied as sufficient assets transferred
Grafe acquired franchise to run bus route, employees acquired but not buses (worthless, needed to be replaced) - don't want people structuring deals to avoid directive - consider all facts - compare to overall asset base - bus small fraction
Bricklayer personal taken but equipment, brick laying not labour intensive, look if assets acquired made up significant portion of asset base