Employment law solicitor Richard Grogan of Richard Grogan & Associates writes on an interesting case involving the transfer of an employee with a claim.

The case of Kilsaran Concrete Limited and Mindaugas Viskontis was one where the employee had been employed by one company and where there had been a transfer over to Kilsaran Concrete Limited.

Under a request under the Data Protection Act, Cemex (ROI) Limited had furnished documentation. Unfortunately the company did not have the documentation but it was shared by this office with the representatives of Kilsaran Concrete Limited. There was no question of us wanting to take short.

The interesting aspect of this case, which is not covered in the decision, was that claims had gone against Cemex (ROI) Limited and Kilsaran Concrete Limited and there had been a lengthy discussion in the Labour Court about the Transfer of Undertakings and to whom liability attached.

As part of the discussions which took place between this office on behalf of the employee and Ibec on behalf of the employer, it was agreed between the representatives that where a Transfer of Undertaking takes place, the liabilities under an employment law claim transfer to the new employer.

There have been some ongoing discussions as to what the effect of the Transfer of Undertaking regulations are in Ireland where there is a transfer of an employee from one company to another.

It is now appears settled - or certainly accepted by this office and by Ibec, and applied by the Labour Court - that where there is a transfer under the Transfer of Undertakings, any claim that the employee had against the prior company automatically transfers to the transferee. This may appear unfair, but that is the law.

For employers who are involved in a transfer of an undertaking, it is vitally important that appropriate due diligence is carried out, as failure to do so can result in the new employer being left with an employment law claim and the liability for same.