2019/10 Employee’s right of choice between transferor and transferee in the event of a business transfer (NO)

As a result of a transfer of an undertaking an employee lost her pension scheme rights. The transferor was bound by the pension scheme covering the employee which had been agreed upon in a collective agreement. However, the transferee company gave notification that it did not want to be bound by the collective agreement and, thus, the pension scheme. The Norwegian Supreme Court (Høyesterett) considered this loss a material negative change to the employment relationship. Therefore, the employee had the right to make use of the non-statutory exception rule of the right to insist upon continuation of the employment with the transferor, a non-statutory right of choice.

2019/10 Employee’s right of choice between transferor and transferee in the event of a business transfer (NO)

As a result of a transfer of an undertaking an employee lost her pension scheme rights. The transferor was bound by the pension scheme covering the employee which had been agreed upon in a collective agreement. However, the transferee company gave notification that it did not want to be bound by the collective agreement and, thus, the pension scheme. The Norwegian Supreme Court (Høyesterett) considered this loss a material negative change to the employment relationship. Therefore, the employee had the right to make use of the non-statutory exception rule of the right to insist upon continuation of the employment with the transferor, a non-statutory right of choice.

ECJ 20 July 2017, case C-416/16 (Piscarreta Ricardo), Transfer of undertaking

The Acquired Rights Directive applies in a situation in which a municipal body was wound up and its activities transferred in part to another municipality and in part to a different body, and an employee on long term leave, whose employment contract was suspended and was therefore not working at the time, was still covered by the concept of ‘employee’ within the meaning of the Directive.

ECJ 20 July 2017, case C-416/16 (Piscarreta Ricardo), Transfer of undertaking

The Acquired Rights Directive applies in a situation in which a municipal body was wound up and its activities transferred in part to another municipality and in part to a different body, and an employee on long term leave, whose employment contract was suspended and was therefore not working at the time, was still covered by the concept of ‘employee’ within the meaning of the Directive.

Case C-416/16. Transfers of undertakings

Does Article 1, and in particular paragraph (b) thereof, of Council Directive 2001/23/EC apply to...

Case C-416/16. Transfers of undertakings

Does Article 1, and in particular paragraph (b) thereof, of Council Directive 2001/23/EC apply to...

Cases C-680/15 and C-681/15. Transfer of undertakings

I.Does Article 3 of Council Directive 2001/23 preclude a provision of national law which provides...

Cases C-680/15 and C-681/15. Transfer of undertakings

I.Does Article 3 of Council Directive 2001/23 preclude a provision of national law which provides...

2015/19 Successfully appealed pre-transfer dismissal revives employment contract retroactively, causing contract to transfer (UK)

An employee’s successful appeal against dismissal meant that her dismissal was overturned and she was, without more, automatically reinstated with retrospective effect. The decision did not have to explicitly refer to reinstatement nor did it need to be communicated to the employee to be effective. This logic applies even where the employer’s business transferred to a new employer after the dismissal but before any appeal hearing. Background The European Acquired Rights Directive on safeguarding employees’ rights in the event of transfers of undertakings has been implemented in the UK by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). Regulation 4 of TUPE provides that a relevant transfer shall not operate to terminate an employee’s employment contract. In order for their employment to be protected and to transfer to the new employer, however, employees must be employed by the first employer “immediately before the transfer”. Employees who are dismissed prior to the transfer for a reason unconnected to it will not, therefore, become employed by the new employer, unless – as this case shows – the decision to dismiss them is overturned on appeal.

<strong>2015/19 Successfully appealed pre-transfer dismissal revives employment contract retroactively, causing contract to transfer (UK)</strong>

An employee’s successful appeal against dismissal meant that her dismissal was overturned and she was, without more, automatically reinstated with retrospective effect. The decision did not have to explicitly refer to reinstatement nor did it need to be communicated to the employee to be effective. This logic applies even where the employer’s business transferred to a new employer after the dismissal but before any appeal hearing. Background The European Acquired Rights Directive on safeguarding employees’ rights in the event of transfers of undertakings has been implemented in the UK by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). Regulation 4 of TUPE provides that a relevant transfer shall not operate to terminate an employee’s employment contract. In order for their employment to be protected and to transfer to the new employer, however, employees must be employed by the first employer “immediately before the transfer”. Employees who are dismissed prior to the transfer for a reason unconnected to it will not, therefore, become employed by the new employer, unless – as this case shows – the decision to dismiss them is overturned on appeal.