This morning, in an Article titled “Target Express driver misses out on redundancy payment” written by Julian Fowler of the BBC News, it was reported that a former employee of Target Express, who had worked for the company for 12 years, has been told he is not entitled to any statutory redundancy payment. He lost his job when the company was put into Administration in August 2012. Mr Meehan had previously been told by the administrator that he would receive a statutory redundancy payment of just over €12,000 (£10,500) from the Department for Social Protection in Dublin, for his 12 years of continuous service.
Now it appears that he is being refused Redundancy because, having being employed previously by the company in Northern Ireland (presumably by an associated company of Target Express; although this is not made clear by the Article) he was then transferred from the company`s Lisnaskea depot (in Northern Ireland) to the Clones depot (in the Republic of Ireland) only 11 months before the Administration and therefore had not worked for the required 2 years for the company in the Republic of Ireland to entitle him to statutory redundancy.
As stated by Mr Meehan : “Along the border area there’s a lot of people in the same situation.” Mr Meehan also states that he did not sign a new contract and was led to believe he was continuing to work for the same company under the same terms without breaking his record of service.
The TUPE Regulations
While I am not familiar with Mr Meehan`s circumstances, if he did in fact transfer from one company to another, his employment rights were protected by the EU Council Directive No. 2001/23/EC under which both Northern Ireland and the Republic of Ireland enacted the relevant “Transfer of Undertakings Regulations” (commonly known as “TUPE”) by which the Regulations safeguard the rights of employees when there is a change in ownership of the business in which they are employed. In essence, the new owner is required to step into the shoes of the old owner in relation to the employees. The employees are entitled to the same terms and conditions of employment as applied before the transfer of ownership, their continuity of service is preserved and existing collective agreements must be honoured. The new owner becomes liable for obligations that accrued to employees before the transfer but were not discharged.
Therefore, when Tommy Meehan transferred over to the Clones depot, it would not have been necessary for him to sign a new Contract, as his previous rights were safeguarded (even though the transfer was from one jurisdiction to another). Bear in mind that the TUPE Regulations relate also to the transfer of a business undertaking. Therefore, if Mr Meehan transferred over to the Clones depot because part of the business of the overall company (North and South) was being transferred over to the Clones depot, then this transfer was covered under the TUPE Regulations and Mr Meehan`s 12 year continuity of employment was protected.
Who is obliged to pay the Redundancy?
The employer, and consequently the Administrator (or the Liquidator, as it is my understanding that the Republic of Ireland of Ireland company was placed in Liquidation) is obliged to pay the Redundancy in the normal course. The Department of Social Protection is only obliged to pay the Redundancy from the Social Insurance Fund if in fact the Liquidator does not have the funds to pay the Redundancy.
Where does the obligation to pay redundancy arise?
There appears to be an acceptance that the obligation to pay redundancy arises in the Republic of Ireland. This, in the writer`s view, is correct as this is where Mr Meehan was based when his employment was terminated (even though he presumably lives in Northern Ireland and the greater part of his employment with Target Express was in Northern Ireland). Where however the Department of Social Protection may be justifying their refusal to pay the Redundancy is on the basis (although not stated in the Article) that the employee was not paying Social Insurance in the Republic of Ireland for 2 years.
The Redundancy Payments Act 1967.
To qualify for a Redundancy payment the Act states at Section 4(1) that :
“ Subject ….. to section 47 this Act shall apply to employees employed in employment which is insurable for all benefits under the Social Welfare Acts, 1952 to 1966 and to employees who were so employed in such employment in the period of two years ending on the date of termination of employment.”
Therefore, in this instance, Mr Meehan had not paid Social Insurance contributions for 2 years in the Republic of Ireland and has presumably been excluded on that basis.
Section 25 Redundancy Payments Act 1967
Sect 25(3) of the Act however states that :
“In computing, for the purposes of this Act, for what period of service a person was in continuous employment, any period of service in the employment of the employer concerned while the employee was outside the State shall be deemed to have been service in the employment of that employer within the State.”
Therefore, in this instance, it is respectfully submitted by the writer that this employee, Mr Meehan, should be entitled to have his service in Northern Ireland taken into account when calculating his statutory redundancy entitlements.
Section 47 Redundancy Payments Act 1967
If the Department cannot see its way to making payment under Section 25, then perhaps it should address its mind to Section 47, which is referred to on a proviso basis at Section 4(1) of the Act. Section 47(1) states that:
“The Minister may, in respect of a class of employee excluded from this Act by section 4 or by an order made thereunder, and after consultation with representatives of employers interested in the form of work normally carried on by employees of that class and with representatives of employees so interested, prepare and cause to be carried out a scheme (in this Act referred to as a special redundancy scheme) providing in accordance with the terms of the special redundancy scheme for redundancy payment to employees of that class.”
If the Department of Social Protection believes that it cannot make payment then Mr Meehan can make representations to the Minister under Sect 47 of the Act to create a scheme for workers like Mr Meehan who are placed in this precarious situation. As Mr Meehan stated : “Along the border area there’s a lot of people in the same situation”. Surely then it is up to the Department and the Minister to take cognizance of this and do the decent thing.
Morgan McManus Solicitors
Practising in the Republic of Ireland and Northern Ireland
Email : firstname.lastname@example.org
Website : brilliantreddev.co.uk/morganmcmanus