High Court of Ireland Decisions

1. This is a petition brought before the court in accordance with section 13 of the Assurance Companies Act, 1909 as amended and Article 35 of the European Communities (Life Assurance) Framework Regulations 1994 whereby sanction is sought for the transfer to Royal Liver Assurance Limited (hereinafter referred to as “RLA”) of the Industrial Assurance business presently carried on by Irish Life Assurance plc (hereinafter referred to as “Irish Life”). That business comprises the part of the long term business conducted by Irish Life allocated to and carried on in the Irish Life Industrial Assurance Fund, being one of the three notional sub-funds into which the long term fund of Irish life is divided, and is industrial assurance business within the meaning of Part V of the Insurance Act, 1936, as amended.

2. The predecessor company of Irish Life Assurance plc was incorporated on the 13th March 1939 as the Irish Assurance Company Limited. It changed its name to Irish Life Assurance Limited in 1959. The legal and capital structure was changed in 1990 when it became a subsidiary of Irish Life plc which was floated on the stock exchanges in London and Dublin in July 1991. Irish Life plc was acquired by Irish Permanent plc in 1999 which changed its name to Irish Life and Permanent plc. The ultimate holding company of Irish Life is Irish Life and Permanent plc. Irish Life transacts life assurance, general annuity, pensions and permanent health insurance business in the Republic of Ireland. Both ordinary branch business and industrial branch business are transacted.

3. Industrial assurance business is also known as home service business whose premiums are collected by collectors and in effect is life insurance business.

4. Before considering the essential features of the Scheme, it is appropriate to set out the statutory framework and the relevant legal principles which are applicable.

5. Section 13 of the Assurance Companies Act, 1909 provides:-

6. Part III of the European Communities (Life Assurance) Framework Regulations, 1994 relates, inter alia, to assignment of policies, and provides as follows at section 35:-

7. The other Regulations mentioned in the title hereof implement the mandatory provisions of Directive 95/26/EC in respect of authorised insurance companies. The Regulations empower the Minister to seek information about companies related to insurance companies and require auditors of those related companies to inform the Minister of any material circumstances in such a company likely to lead to a breach of the Insurance Acts and Regulations in the insurance company.

8. Both the historical reasons for the requirement of Court approval to a transfer and the relevant consideration which should apply whenever such an application is made, are comprehensively set out in the following passage from the Judgment of Hoffmann J. (as he then was) in the Chancery Division (Companies Court) in Re London Life Association Limited (21 February 1989, unreported) when he stated:-

9. I have set out this statement fully because it clearly demonstrates that although the “no sufficient objection” test has been abolished in the U.K., essentially the same principles apply. Secondly, it is important to bear in mind, as pointed out by Mr. Gallagher on behalf of the Petitioner, that the statutory role extended to employees under the U.K. arrangements does not obtain in the Irish context where employees have no statutorily defined right to be heard on the petition. While he refrained expressly from any argument that employee objectors of Irish Life lacked locus standi to object to the proposed transfer, he submitted that there was an identifiable procedure available to protect employees in the context of any transfer of business.

10. This protection is to be found in the European Communites (Safeguarding of Employees Rights on Transfer of Undertakings) Regulations, 1980 (S.I. 306/1980), the relevant portions of which are as follows:

11. Various offences were created by these Regulations which provide for fines upon conviction of any person contravening a provision thereof. Amending Regulations (S.I. No. 487 of 2000) further provided that an employee or a trade union, staff association or excepted body on behalf of an employee, might present a complaint to a Rights Commisissioner that an employer had contravened Regulation 7 of S.I. No. 306 of 1980 and detailed provisions for hearing of such complaints was therein provided for. An increase in the level of fines was also provided for by the same Regulations.

12. On the 18th December 2001, I directed that the petition herein be listed for hearing on the 18th day of February 2002. I further directed that notice of the petition be served on the Minister for Enterprise, Trade and Employment (hereinafter referred to as the Minister). I also directed that the petition be advertised in Iris Oifigi úil, the Irish Times, the Irish Independent, the Daily Telegraph, the Daily Mail and in the London, Belfast and Edinburgh Gazettes.

13. The Court further directed that the petition and transfer agreement and accompanying papers be available for inspection by policy holders of both Petitioners at the registered offices of the Petitioners and that the registered address of the branch office establishment in Ireland of Royal Liver Assurance Limited between the hours of 9.30 a.m. and 4.30 p.m. for a period of fifteen working days after the date of publication of the matter in Iris Oifigi úil and the London , Belfast and Edinburgh Gazettes.

14. The Order further directed that the circular to be sent out concerning the transfer need only be circulated to Industrial Branch policy holders and notified assignees with Irish Life Assurance plc at the address last known or given to Irish Life Assurance plc and to the delegates of Royal Liver Assurance Limited.

15. As the adequacy of notice given has been the subject matter of complaint when the matter came before this Court on the 18th February and the 22nd February 2002, I will deal briefly with the steps that were taken following the making of the Court Order on the 18th December. Firstly, the petition and accompanying papers were served on the Minister’s Department on the 2nd January 2002. A copy of the same papers was sent to the Chief State Solicitor’s Office on the 14th January 2002. The petition was duly advertised in Iris Oifigi úil and the Belfast and Edinburgh Gazettes on the 18th January 2002, and in the Irish Times, the Irish Independent, the Daily Mail, the Daily Telegraph and the London Gazette on the 16th January 2002. The uncontested evidence of Mr. Denis Casey, Director of Irish Life, as set out in his Affidavit sworn on the 18th February 2002, shows that the petition transfer agreement and accompanying papers were available for inspection by policy holders and shareholders of Irish Life and policy holders and members of RLA at the registered office of Irish Life at Irish Life Centre, Lower Abbey Street, Dublin 1 and at the registered office of RLA at Royal Liver Building, Pier Head, Liverpool and at their Dublin offices at Willow Road, Dublin 12 since 16th January 2002 during normal business hours. Mr. Casey further deposes that between the 15th January and 18th January 2002, the circular concerning the transfer was sent out to the Industrial Branch policyholders and notified assignees of Irish Life at their last known or given address. Due to the magnitude of the task, the printing of the policyholder’s circular was outsourced by Irish Life and was given to a company called Wood - Printcraft Limited who in turn retained a company called The Mail Works to insert the covering letters and circulars in envelopes and to bag, tag and send the same to An Post for posting. The envelope in which the documentation was sent had a plastic window, so that the address to which the same was being sent was inserted in front of this window. 156,000 persons required to be circularised and the process commenced on the 15th January 2002. The following morning it became apparent that a number of envelopes which had been sent out were found to have contained two letters. Approximately 6000 envelopes were returned to Irish Life marked “unknown at this address”. As a result of these detected errors, 460 customers required to be mailed with circulars/letters after the original mailing. Only 0.3 of 1% of the total number of circulars dispatched have shown to be defective and I do not regard this error as being in any way significant.

16. Following the Order for directions, new policies were issued by Irish Life and copies of the circular were sent to each new policyholder giving the appropriate information on the proposed transfer. All requisite overseas advertisements were duly placed and no issue arises in that regard.

17. On the 15th February 2002 the Minister confirmed that she had no objection to the proposed transfer of business. In relation to policyholders of Irish Life who are currently resident in other EU Member States, the supervisory authorities of the five Member States in question were consulted, in accordance with Article 11(4) of Council Directive 92/96/EEC (Third Life Directive). All Member States where policyholders are resident have now confirmed they have no objection to the Scheme. The Minister has also now granted mergers approval in respect of the proposed transfer.

18. In England a duly convened Special General Meeting of the delegates of RLA was held on the 14th February 2002 in the Adelphi Hotel, Liverpool, at which a special resolution approving the transfer was duly carried and passed by the necessary majority of 75% of the delegates present and voting at the Special General Meeting. The Financial Services Authority in the U.K. as the regulator of RLA, had no objections to the transfer and provided the solvency certificate required under Article 35(1) of the European Communities (Life Assurance) Framework Regulations 1994 on the 13th February 2002.

19. The Scheme which I am about to consider was reviewed by appointed actuaries of Irish Life and RLA who, together with Mr. Nicholas Taylor, an independent actuary appointed for the purposes of section 13(3)(b) of the Assurance Companies Act 1909, as amended, have considered the said Scheme in the light of the assets and liabilities of Irish Life and RLA. Mr. Taylor is a fellow of the Institue of Actuaries, a fellow of the Society of Actuaries in Ireland and an Associate of the Society of Actuaries, and has no interest in either Irish Life or RLA and has acted as an independent actuary in connection with a number of transfers of Irish Life Assurance business.

20. I should say I am also satisfied that Irish Life is duly authorised under the terms of its Memorandum of Association to effect a transfer such as that under consideration and I am satisfied that the Directors of Irish Life and the Committee of Management of RLA have duly approved the transfer. I am also satisfied the RLA is entitled to receive such a transfer under the relevant U.K. legislation.

21. Accordingly, insofar as the statutory and technical requirements for the transfer are concerned, I am satisfied that they have been fully complied with, including, in particular, the notice, advertising and transmission of information requirements set out in the Assurance Companies Act, 1909. I am further satisfied that the Order of the Court made on the 18th December 2001 has been fully complied with in this respect.

22. It is proposed that this Scheme will take effect from 28th February 2002. The main purpose of the Scheme is to provide for the transfer to RLA of the whole of the long term business written in the Industrial Branch funds of Irish Life so as to become part of the long term business of RLA. Under the Scheme the whole of the liabilities relating to the Industrial Branch business of Irish Life will be transferred to RLA where they will be allocated to the Industrial Assurance Fund. The whole of the assets relating to the Industrial Branch business of Irish Life will also be transferred to the RLA where they will be allocated between the Industrial Assurance Fund and the Investments Reserve Fund. The transferred business shall form part of the Irish Branch of RLA, who have undertaken to continue the collection of premia by way of payments to An Post and have further undertaken to continue to make personal collections of premia from various policyholders, should they so desire. As of 31 December 2000 Irish Life had 639,222 contracts in force which had been written in its Industrial Branch Fund with an annual premium income of €20.7m., and mathematical reserves of €196.1m. The assets in the Industrial Branch Fund, net of liabilities, amount to €494.5m. Under the Scheme the rights under contracts written by Irish Life and RLA will not be changed. Any right under an Industrial Branch contract to effect a new contract, or take up an option, with Irish Life will be amended so that the right will be to effect an equivalent contract, or take up the option, with RLA. If no contract exactly meets the right or option RLA may offer a contract which their appointed actuary considers to be the nearest alternative. The Scheme contains Principles of Financial Management which will apply to the Industrial Branch business of Irish Life. In particular, the Principles of Financial Management set out the basis for managing the business which participates in profits, following the transfer to RLA. Any Industrial Branch Irish Life contracts written in an EEA State, other than the Republic of Ireland, or, unless Irish Life and RLA agree otherwise the United Kingdom, in respect of which the relevant supervisory authority has not given or has not been deemed to have given, its consent to the Scheme, as required under the Act, will not be transferred initially. However, the benefits payable under these contracts will be identical to those which would have been payable if they had been transferred. Once any appropriate consents have been given, the contracts will be transferred to RLA. Any assets relating to the Industrial Branch Fund of Irish Life which cannot presently be transferred due to non receipt of appropriate consents or waivers will be held by Irish Life as trustee and in trust for RLA and the assets will be transferred once the consents or waivers are obtained. RLA will assume responsibility for the liability to discharge all claims, maturities, death benefits and other amounts arising from the liabilities transferred, including the costs of administration. Finally, Irish Life transferring policyholders, who qualify under RLA Rules, will be granted membership of RLA.

23. In his report dated 14 December 2001, Mr. Taylor considered the effect of the proposed transfer, both from the point of view of security and benefit expectations for policyholders. He also considered the effect of the transfer on membership rights in RLA.

24. Security in this sense revolves on the margins which exist at the reserving basis adopted and in the free reserves of Irish Life and RLA. Both Irish Life and RLA have set up reserves using established methods and prudent assumptions, and Mr. Taylor is satisfied that the appointed actuaries of Irish Life and RLA have adopted appropriate methods and assumptions in calculating the mathematical reserves. Solvency margins are maintained by Irish Life and RLA in addition to the mathematical reserves in respect of the contracts in force. I have already referred to the mathematical reserves of €196.1m., which as of 31 December 2000 was in place in relation to business written in the Industrial Branch Fund compared with available net admissible assets of €494.5m., giving a surplus of €298.5m., an excess of €290.4m. over the required minimum solvency margin of €8.1m. in this fund. As of 31 December 2000 RLA had total mathematical reserves of €2,761.7m., compared with available net admissible assets of €3,546.1m., giving a surplus of €784.4m., an excess of €666.5m., over the required minimum solvency margin of €117.9m. Out of the mathematical reserves, €794.4m., relates to business written in the Industrial Assurance Fund. These reserves exclude additional reserves of €141.6m., which relate to both ordinary business and industrial business and are a liability of the Investments Reserve Fund. Additional industrial business transferred from Friends Provident increased those mathematical reserves to €3,238m., with available net admissible assets of €4,364.3m., giving a surplus of €1,127.3m., an excess of €991.7m. ,over the required over the required minimum solvency margin of €135.6m. Out of the mathematical reserves, €1,223.5m., relates to business written in the Industrial Assurance Fund. Having discussed the current financial position of both Irish Life and RLA with their respective appointed actuaries, Mr. Taylor was satisfied that the security provided for the current policyholders of Irish Life and RLA was more than adequate as of 31 December 2000 and that this continued to be the case “despite current market conditions”. Following the transfer, the security of the transferring Irish Life policyholders and the current RLA policyholders will rely on the margins which exist in the reserving basis adopted and in the free reserves of RLA. He also considered the strength of both Irish Life and RLA from the point of view of their respective statutory free asset ratios, being the excess of the assets, over the liabilities, including the required minimum solvency margin, expressed as a percentage of the assets. His conclusion was that the transfer of the Industrial Branch business of Irish Life to RLA would bring about no material effect on the security of the transferring policyholders of Irish Life or the current policyholders of RLA. He has also considered the position in relation to deferred transfers in respect of contracts written in an EEA State, or where consent or waivers are required, and has expressed satisfaction that arrangements in this regard will not adversely affect the security of Irish Life and RLA policyholders. The security of the remaining current policyholders of Irish Life will, in his opinion, be altered but “will be more than adequate”.

25. Insofar as benefit expectations are concerned, Mr. Taylor notes that the policyholders contractual benefit entitlements remain unchanged by the Scheme. He notes that the Scheme contains detailed Principles of Financial Management to ensure that the transferred business is managed with due regard to policyholders’ reasonable expectations. He has compared them with the principles currently adopted by Irish Life and in his opinion they reflect the current principles updated to reflect the transfer of the Industrial Branch business to RLA and should strengthen the benefit expectations of the transferring Irish Life policyholders whose contracts participate in profits. He has also studied the principles currently adopted by RLA in respect of business which participates in profits and is satisfied with those principles. He is also satisfied that reversionary bonus rates and terminal bonus rates for transferring Irish Life contracts are adequately protected under the principles of financial management.

26. Finally, where they qualify under RLA’s Rules transferring Irish Life policyholders will be granted membership of RLA with effect from the date of transfer. Mr. Taylor points out that for the transferring policyholders, the right to vote for delegates and the potential right to share in any surplus in the event of the winding up or demutualising of RLA are additional benefits. He concluded that no further covenants or undertakings were required from Irish Life or RLA other than those given in or pursuant to the terms of the Scheme.

27. In a letter circulated to policyholders in advance of the Special General Meeting of delegates convened to approve the terms of the Scheme and dated January 2002, Mr. Brian McCaul advised the policyholders that the transaction would add an estimated €300m., to Royal Liver’s funds under management and would thus enhance Royal Liver’s already strong financial position. In the circular sent to policyholders explained that RLA in assuming the Industrial Assurance liabilities of Irish Life would make payments to Irish Life of €23.5m., for the infrastructure and operating assets and an amount in the order of €150m., based on current asset values, for the other assets of the business, which would be used by Irish Life to replace solvency support for the remaining life assurance business that is currently provided by the Irish Life Industrial Assurance Fund. The exact amount payable would be determined as at the Effective Date.

28. For the sake of completeness I should record that RLA has done business, including industrial assurance business, in Ireland since 1855 and has some 700 employees attached to its Irish branch. In writing to Irish Life policyholders in January 2002, Mr. Denis Casey wrote as follows as to why Irish Life had decided to transfer the business:-

29. I now turn to the objections raised, which may broadly be categorised as follows:-

30. As regards (a) and (b) above, many enquiries of a general nature were directed by telephone to Irish Life following publication of the notices. Others were contained in correspondence. In addition, concerns from the point of view of both policyholders and employees were expressed at sittings of this Court on the 18th February 2002 and on the 22nd February 2002. Three employees of Irish Life were legally represented on each occasion and Affidavits were filed in respect of their complaints by the employees concerned. Some 15 - 20 other employees attended without representation, some of whom voiced objections which focus mainly on the impact of the proposed transfer on certain grades of employees and staff within Irish Life. It would be quite impossible to deal in this judgment with each individual objection in close detail and I propose to approach the objections in the same manner as adopted by Rimer J. in the Companies Court of the Chancery Division in Re Hill Samuel Life Assurance (1998) 3 All ER at p.176 , that is to say, by category of complaint.

31. I will address firstly the enquiries and complaints addressed to RLA which are dealt with in the Affidavit of Brian McCaul sworn on the 14th day of February 2002. He records that nine telephone calls were received from RLA customers in connection with the proposed transfer. Eight of these calls related to requests for additional information or clarification in respect of the proposed transfer. One RLA customer raised a concern about the effects on maturity values under policies. He was concerned that if RLA took on more business that maturity values would further decrease in 2002. Albert Bloor, Chief Actuary of RLA, wrote to their policyholder explaining that stock markets had fallen significantly all over the world in recent times and explaining that transfers of business to Royal Liver in recent years had had no effect on maturity values. No other significant objection of substance arose in respect of RLA customers or policyholders.

32. In relation to (b), a number of Irish policyholders complained, as per the Schedule attached to the third Affidavit of Denis Casey sworn on the 18th day of February 2002. Having considered that Schedule, I am satisfied that insofar as the proposal itself is concerned, no objection of substance was raised, other than in the query raised both by Mr. Noel Ryan and Mr. Niall Murphy to which I shall presently refer. The other objections mainly related to the transfer of Irish business to an English company and the fear that information might be more difficult to obtain if it was necessary to telephone England to find out anything.

33. However, both Mr. Ryan and Mr. Murphy who attended the Court hearings raised the following point. The net value of the Industrial Branch Fund, the policyholders accumulated fund, is stated to be €494.5m., as of December 1st 2000. However, RLA say that the transfer will add only an estimated €300m. to its funds under Management. If deductions, including €23.5m. for infrastructure and operating assets and €150m. being left with Irish Life under the requirements of its solvency support requirements are being taken from the policyholders fund, the policyholders, it is suggested, whose fund was being transferred , were losing out. It was suggested either that all of the fund should be transferred in order to protect Irish Life policyholders, or alternatively, that the deductions should not be given to Irish Life but instead should be paid to policyholders of Irish Life.

34. To address these concerns, a further Affidavit of Bill Hannan was sworn on the 25th February, 2002 and open to the Court on that date. In his Affidavit he explains that under the Transfer Agreement between Irish Life and RLA, Irish Life are transferring the entire of its business and the totality of its assets allocated to and carried on in the Industrial Assurance Fund to RLA as of the Effective Date. In consideration for this, RLA will make payments to Irish Life for the assets that are transferring over. RLA have agreed to pay €23.5m. for the infrastructure and operating assets and are also making a further payment in respect of the other assets of the business which will be in the region of €150m. The consideration is to be calculated in accordance with criteria laid down in the Transfer Agreement. These monies, Mr. Hannan deposes, will be used to replace solvency support for the remaining life assurance business that is currently provided by the Irish Life Industrial Assurance Fund which would otherwise have continued to be provided by the said Industrial Assurance Fund.

35. He points out that all of this information was available to the independent actuary at the time he prepared his report, and these arrangements do not affect the security of policyholders or their benefit expectations. Further, Counsel on behalf of Irish Life submitted, correctly in my view, that policyholders had no legal or beneficial interest in the fund itself.

36. Mr. Hannan further deposes that the confusion regarding the funds transferring over to RLA arose because of a comment made by RLA following the announcement of the proposed transfer to the effect that their funds under management would be increased by approximately €300m. In fact that sum reflects the calculations of RLA as to the net increase in assets they will hold after the transfer, having taken into account the consideration to be paid to Irish Life. I am satisfied having regard to the report of the independent actuary and the conclusions expressed therein that this concern expressed by Mr. Ryan and by Mr. Murphy has been fully addressed.

37. Finally, I turn to the complaints of Irish Life employees, contained both in the Affidavits placed before the Court and in concerns expressed in Court both by Counsel on behalf of those employees who were represented and by individual employees who spoke themselves.

38. Before doing so, it is only appropriate to say that the extent to which employee concerns can affect the exercise of the Court’s discretion in an application of this nature is necessarily limited. The statutory framework for the transfer of assurance business requires only consultation with policyholders, although on the hearing of the petition, the Court may hear the Directors and “other persons whom it considers entitled to be heard”. The protection afforded to employees under the European Communities (Safeguarding of Employees Rights on Transfer of Undertakings) Regulations, 1980 provides for a separate regime for informing representatives of employees affected by a transfer of the matters set out at Article 7 of the Regulations. To that extent, the Court must obviously have regard to the Regulations because a substantial or egregious breach of the obligations therein contained would inevitably influence the Court in the exercise of its discretion. The essential requirements are for the giving of information to unions and staff about the reasons for the transfer, the implications of same for employees and the measures envisaged in relation to employees in good time before the transfer is carried out. It is not a requirement of the Regulations that negotiations on the working conditions of each and every employee who is affected by the transfer take place and be resolved to that employee’s satisfaction before the obligation under the Regulations is discharged. Still less can this Court be the adjudicator or arbitrator of ongoing grievances or disputes between management and staff arising from likely changes to work conditions in the context of a transfer. The Regulations themselves expressly envisage that economic, technical and organisational aspects of transfers may entail changes in the workplace, up to and including dismissals and do not prohibit dismissals thus arising. As the historical analysis shows, the role of the Court in applications of this nature derives more from the fact that policyholders had in the past suffered significantly through the absence of effective Regulation. It is unfortunately the case, as pointed out by Mr. Gallagher, that one aspect of the transfer of a business is that employees, or some of them, are affected to a greater or lesser degree. It seems to me, however, that the Court, if otherwise satisfied to approve a scheme, should only withhold its approval if there has been a substantial or egregious breach of the Transfer of Undertakings Regulations, or if satisfied that the disruption to the employees of an undertaking is so severe in its implication as to cast in doubt the conclusions of the independent actuary.

39. I propose to summarise the Affidavits of William Parsons, Ian Judd and Adrienne Rynne, whose complaints are more or less representative of all those employees who have expressed concern or raised objections.

40. All three employees are home service representatives and union members who have been on sick leave and are in receipt of permanent health insurance payments under the Employees Scheme with Irish Life. They claim they were given no notice of any kind of intended transfer of home service aspects of Irish Life until the 12th February, 2002 and only received formal details of the proposed transfer and materials relating to it on Friday 15th February, 2002. Mr. Parsons and Mr. Jedd attended a meeting with an Irish Life representative on that date. Mr. Rynne was not present and contends he never received clarification as to how any change would affect the terms and conditions of his employment. However, all three employees did on the 12th February, 2002 receive a letter from Mr. Sean Brennan, Human Resources Manager of Irish Life, dated 31st January 2002 setting out the implications for home service representatives. In short, they had the option of remaining as employees of Irish Life or transferring to Royal Liver as home service representatives. Their Irish Life benefit would continue while they remained unfit to work. If, however, they returned to work after the completion of sale then the position would be (a) where an option had been expressed to remain as an employee of Irish Life, it would not be possible to return to the employee’s previous role as home service representatives would no longer exist in Irish Life and it would be necessary to accommodate the employee in a suitable alternative role or (b) where the employee opted to transfer to RLA, the employee’s role as home service representative would then “be discussed with you by Royal Liver”.

41. All three employees regarded this as totally unsatisfactory, providing no adequate notice or opportunity to consider the proposals and the radical changes in their conditions of employment. Similar concerns were expressed by other employees, being either home representatives or other grades who saw themselves as being affected by the consequences of the proposed transfer. It is only proper to record that a real sense of grievance was manifest in contributions made by individual objectors in Court which was all the more telling for the restrained manner in which those concerns were expressed. In some instances employees had endured muggings and violent assaults over their lengthy service with Irish Life in the course of their collecting duties only now to find they were being confronted with unpalatable choices with, as they saw it, very little time or information in which to make an informed decision as to their future.

42. In a further Affidavit sworn by Sean Brennan on the 21st February 2002, Mr. Brennan explains that there are two trade unions representing employees who will be affected by the transfer, namely MSF and SIPTU. MSF represent 97 employees, SIPTU represents 16 employees. The remaining 77 employees are not affiliated with a union. He deposes that as far back as June 2001, Irish Life and RLA announced they were in talks concerning the potential transfer of the Industrial Branch business. In that same month, letters were sent by Irish Life to both unions regarding the talks entered into with RLA and there were meetings with the MSF union in August and September, 2001 where the Industrial Branch business was discussed. In July, 2001 a letter was sent to all home service representatives regarding a retention payment to be made to transferring staff who met certain performance criteria. Further meetings with both unions took place in October 2001 where again the Industrial Branch business was discussed. On the 6th December 2001 a memo was sent to all affected grades of staff, announcing the sale of the Industrial Branch business and the agreement that was reached that day between Irish Life and RLA. On the same date, a letter was sent to MSF detailing the communication which had been sent to the employees. A further notice was sent to all home service employees on the 18th December 2001 regarding forthcoming communications and following this on 9 and 10 January 2002 a presentation was made to the home service representatives regarding the proposed sale. On 10 January 2002 a meeting was held at the MSF union at which representatives of RLA were also present and following that a further meeting took place on 15 January again with the MSF union and members from RLA and on the same date a letter was sent to the MSF union by Irish Life. Following further union meetings, another presentation was made to the relevant grades at the end of January which concentrated on pension entitlements and any other queries. On the 31st January 2002 a letter of offer was sent out from RLA to the MSF union regarding the transfer and details of this offer from RLA to the various grades was sent out on 4th February 2002. On the 6th February 2002 the MSF union voted to accept the terms of offer set out in the letter of the 31st of January 2002.

43. In early February 2002 a letter was sent out to all home representatives who were absent from work on PHI regarding their entitlements under the Transfer of Undertaking Regulations and on the 7th February 2002 a similar letter was sent to personal financial advisors, who were also absent on PHI. On 13th February, 2002 a letter was sent to the home service representatives who were then on PHI giving details of RLA’s terms and conditions and the retention payment details. This retention payment to be made to transferring staff had been first notified to home service representatives in July 2001.

44. In addition to all these communications and meetings, there were monthly management meetings with employees at which the potential sale of the Industrial Branch business was discussed.

45. Essentially, therefore, insofar as home service representatives are concerned they are transferring to RLA in the same capacity. However, a voluntary early retirement scheme for that grade for those with over thirty years of service has been made available. Irish Life has also presented a number of options to the personal financial advisors category, offering a choice of three options in respect of which the option period for decision has been extended to 26th February, 2002 at the request of the unions.

46. In an earlier Affidavit Mr. Brennan deposes that at the meeting of the 15th February 2002, he went through the terms and conditions on offer from RLA in detail with both Mr. Judd and Mr. Parsons and answered questions in relation to salary and other terms and conditions and went through the presentation given to all active employees in mid January to early February 2002 in relation to RLA, their structure and the structure of the business going forward.

47. I realise that this extremely brief summary of employee dissatisfaction does not do justice to every detail of the various grievances expressed. However, the Court can only approach the matter by reference to the general principles appropriate to an application of this nature and by reference to the considerations which seem to me applicable in the context of the Transfer of Undertaking Regulations.

48. I am satisfied that, broadly speaking, Irish Life has complied with the requirements of the Regulations. To put it another way, no substantial or egregious breach of those Regulations has been established on the material placed before the Court which would justify the Court in holding that Irish Life had disregarded its obligations under those Regulations.

49. It may be, though I am not making any positive finding to this effect, that certain employees who were absent from work on sick leave received only at a late stage the detailed information which was available to active employees through their unions and place of work at all material times. Even if some lapses of this nature did occur, and I stress I am making no positive findings to that effect, they related to a small number of employees only and could not by any stretch of the imagination be regarded as constituting a significant breach of a transferor’s obligations under the Transfer of Undertaking Regulations, such as would warrant this Court in withholding its approval for the proposed Scheme. Still less do these complaints and objections go to the conclusions expressed by the independent actuary in his report, nor do they affect his conclusions in any way.

50. While I did defer further consideration of this application until the 25th February 2002, both to clarify the position regarding the policyholders fund and the attitude of SIPTU, I have concluded that the latter consideration is not something I should take into account in reaching any decision for the reasons already stated. I note however that SIPTU has referred to the Labour Relations Commission a dispute concerning certain implications for employees of the transfer.

51. By further correspondence exhibited in the Affidavit of Mr. Mark Traynor sworn on the 25th February 2002, I have also been made aware that, insofar as SIPTU is concerned, there is no agreement between Irish Life and SIPTU on the issue of the proposed transfer of home service representatives to RLA. Mr. John Swift, Branch Secretary, in a letter dated 22nd February, 2002 records that he represents both home service representatives and personal financial advisors who are employees of Irish Life and certifies that no negotiations on the proposed transfer took place between SIPTU and Irish Life. In his letter he states that at a General Meeting of SIPTU’s Irish Life home service representative members held on the 21st February 2002, Irish Life’s proposal in relation to the transfer of home service representatives to RLA were overwhelmingly rejected. A decision to take industrial action was also taken on that date. These developments convince me that the Court, in exercising its discretion, should not trespass into the arena of industrial relations and confirm me in my view that the only relevant considerations from the point of view of this particular application are those set out above.

52. No evidence has been offered to challenge the findings and conclusions of the independent actuary whose report and conclusions I accept in full.

53. While it is only natural to feel a measure of sympathy for employees whose association as home service representatives with Irish Life extends back over many years in what might be described as a traditional role as collectors, at the end of the day my decision and conclusion must be that no sufficient objection has been made out in this case. I would stress, as has been pointed out several times during the hearing before this Court, that all legal rights and entitlements of the affected employees are preserved in the context of the proposed transfer and I have already referred to the different rights available to employees under the Transfer of Undertaking Regulations as amended.

54. I will therefore sanction the arrangements set out in the Scheme for the proposed transfer in accordance with section 13 of the Assurance Companies Act, 1909.