140 / 346
GAZETTE
JULY/AUGUST
198
works concerned in the contract. This was a new contract
and not an uncompleted portion of an existing contract.
The company in receivership was not a party to the
contract between the Council and the respondents, nor did
any consideration pass from the respondents to the
company in receivership in respect of any matter
other than the purchase of an earth moving machine
from the receiver and the purchase of some other earth
moving machines from the Finance Company, which
hired the machines originally to the company in receiver-
ship. The claimants claimed that they had continuity of
service in respect of their employment with the company
in receivership and the respondent company. The
Tribunal held that the work the subject matter of the
contract between Public Works Limited and the County
Council did constitute a "business" as defined in Section 2
of the Redundancy Payments Act, 1967. They held further
that the company in receivership did not transfer any
portion of its business to the respondent and that the
respondent negotiated a separate contract with Cork
County Council. The business of the company in
receivership did not exist in relation to the contract
work at Bantry when the respondent contracted to
complete the outstanding work and there could not,
therefore, be a transfer or change of ownership of a
business or part of a business. The Tribunal held that the
service of each of the claimants with the company in
receivership could not be added to their service with the
respondents and, as they did not,therefore, have the
minimum service with the respondents necessary to
qualify for a redundancy payment their claims were
dismissed. Cases of this sort should be of help in
interpreting the scope and applicability of the Acquired
Rights Regulations, keeping in mind the added proviso
that, under the Regulations, there must be a change in
employer.
Coughlan
v.
Keane
It is believed the Regulations have only been raised once
with the Employment Appeals Tribunal in this country, in
the case of
Coughlan v. Keane, T/A Keaneland Hotel,
Case
no. M373 UD256/1982. The claimant was employed as a
receptionist at the respondent's hotel from 25th July, 1980
to 16th October 1981. The hotel closed on 7th October
1981 and the staff were paid up to 9th October 1981. The
claimant maintained that she was informed on 7th October
that the hotel was being sold. On 16th October she was sent
home and, when she returned on 27th October, was
informed by the hotel proprietor that the new owner would
speak to her later about her job. On 3rd November 1981
the hotel re-opened. The new owner offered the claimant a
job on 6th November 1981, but she refused the offer
because the conditions of employment were radically
different from what she had done previously. The claimant
relied on the 1980 Regulations and maintained that she was
unfairly dismissed. After considering the evidence, the
Tribunal found/that the Regulations did not apply in the
case, as there 'was a break-in service, the contract of
employment ending when the hotel closed. The Tribunal
held that there was a redundancy situation and, under the
provisions of Section 6(4)(c) of the Unfair Dismissals Act,
1977, dismissal due to redundancy was deemed not to be
unfair and the claimant's claim was
dismissed.ltshould be
noted that the claimant was not legally represented and it
would appear that the Regulations were not opened to the
Tribunal in full. The Tribunal appears to have accepted
that the transferor of the hotel terminated the claimant's
employment. It would appear in that event that the
transferor must justify such termination on the grounds of
economic, technical or organisational reasons entailing
changes in the work force, as required by regulation 5 of
the Regulations. This does not appear to have been done in
this case.
U.K. Industrial Tribunal Cases
A number of decisions have been given by Industrial
Tribunals in the U.K. touching on the regulations. In
Bachelor v. Premier Motors (Romford) Ltd. and Petropolis
Limited,
COIT 1359/181, the claimant was the manager of
a petrol station. On 5th April 1982 his employers, the first
named respondents, entered into an agreement for the sale
of the petrol station to the second named respondents.
Completion of the sale took place on 1 st June 1982 and this
included the sale of the premises, fixtures and fittings and
other minor pieces of equipment and stock.
During the first month of occupation there was some
disruption while M. & M. carried out various building
operations and waited for the transfer of a British Leyland
franchise. The Tribunal considered the following facts as
relevant:
(a) after the sale Mr. Smith did not intend to set up a
business elsewhere and it was unlikely that Mr. Smith
would ever compete with M. &M., particularly as he
had given up the B.L. franchise;
(b) apart from used cars, all assets were transformed;
(c) some of the employees were kept on after the transfer
by M. & M.;
(d) although no goodwill had been transferred, this was
because it had no monetary value and so was not
included in the agreement.
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