The High Court has refused Top Security Limited’s appeal against an Employment Appeals Tribunal decision that the transfer of a security services contract at two Dublin offices came within the transfer of undertakings regulations. The court separately held that the Tribunal was wrong to find Top Security in breach of the regulations’ information and consultation requirements.
Mr Justice White delivered judgment on 10 March 2017 on a statutory appeal limited to points of law. The court said it was exercising a supervisory jurisdiction, not rehearing the case. It found the Tribunal’s decision on whether there had been a transfer of undertakings was not irrational, perverse, based on an identifiable error of law or supported by an unsustainable finding of fact.
The five respondents had worked as security guards at the Chief State Solicitor’s Office in Osmond House, Ship Street, Dublin 8, and the Chancery Building, Chancery Lane, Dublin 7. They had worked exclusively at those offices. They were originally employed by Oscar Security and transferred to Manguard Plus Limited in 2010. Top Security won the contract to provide security services at the same offices from 26 August 2013.
The Tribunal had found that the service was an economic entity, that its identity was retained because the work and client remained the same, and that five of the eight workers associated with the locations would transfer. Top Security challenged those conclusions, arguing there was no transfer of a stable economic entity and that the Tribunal had misapplied the law.
The High Court said the Tribunal had heard the evidence and was best placed to apply the legal principles to its findings. It noted the employees had been in place at one location for a substantial period, there had previously been a transfer from Oscar Security to Manguard, and the tender documents put Top Security on notice that it had to assess possible liabilities under the regulations. The court said Top Security ignored that notice. It declined to decide the appeal grounds by conducting what would amount to a fresh hearing.
The court did, however, accept Top Security’s submission that the respondents had not brought a claim under Regulation 8. It held that responsibility for information and consultation rested with Manguard, unless the incoming contractor envisaged measures affecting employees. The Tribunal was therefore wrong in law to find Top Security in breach of Regulation 8.
The court’s final paragraph states that it refused the application on the substantive ground that there was no transfer of undertakings; read with the preceding reasoning, this appears to contain a drafting inconsistency. The operative reasoning immediately before that paragraph upholds the Tribunal’s transfer finding and refuses to overturn it.