EELA Updates

Case report

2017-09-01

Belgium

2017/37 Pay can only be modified with transferred workers’ consent (BE)

After the transfer of an undertaking (or part of one) the new employer cannot modify the transferred workers’ wages without their consent. This decision of the Belgian Supreme Court of 14 November 2016 leaves no leeway to the transferee to unilaterally substitute certain contractual elements with new ones, even if the new salary scheme is more advantageous overall.

Cour de cassation (Belgian Supreme Court), 2016-11-14

Summary

2017-09-01

2017/37 Pay can only be modified with transferred workers’ consent (BE)

After the transfer of an undertaking (or part of one) the new employer cannot modify the transferred workers’ wages without their consent. This decision of the Belgian Supreme Court of 14 November 2016 leaves no leeway to the transferee to unilaterally substitute certain contractual elements with new ones, even if the new salary scheme is more advantageous overall.

Cour de cassation (Belgian Supreme Court), 2016-11-14

Court watch

2017-07-01

ECJ 27 April 2017, case C-680/15 (Asklepios Kliniken), Transfer of undertakings

‘Dynamic’ referral clauses have effect after the transfer of an undertaking, if national law provides for the possibility for the transferee to make changes both consensually and unilaterally.

European Court of Justice (ECJ), 2017-04-27

Summary

2017-07-01

ECJ 27 April 2017, case C-680/15 (Asklepios Kliniken), Transfer of undertakings

‘Dynamic’ referral clauses have effect after the transfer of an undertaking, if national law provides for the possibility for the transferee to make changes both consensually and unilaterally.

European Court of Justice (ECJ), 2017-04-27

Case report

2016-10-01

Greece

2016/47 Transferor’s undocumented practice of paying retirees more than required by law crosses to transferee, even though the transferee was unaware of the practice (GR)

A company’s unofficial practice of providing an extra amount on top of the statutory severance payable upon retirement is considered an acquired right which binds the new employer in the case of a transfer of the undertaking. This applies whether or not the transferee was aware of it.

Αρειος Πάγος (Supreme Court), 2015-06-09

Summary

2016-10-01

2016/47 Transferor’s undocumented practice of paying retirees more than required by law crosses to transferee, even though the transferee was unaware of the practice (GR)

A company’s unofficial practice of providing an extra amount on top of the statutory severance payable upon retirement is considered an acquired right which binds the new employer in the case of a transfer of the undertaking. This applies whether or not the transferee was aware of it.

Αρειος Πάγος (Supreme Court), 2015-06-09

Case report

2016-06-01

Netherlands

2016/34 Transferee has no claim against transferor for paid leave accrued before transfer (NL)

A transferee cannot claim the value of leave accrued but not taken by transferred employees before a transfer from the transferor.

Gerechtshof Den Haag (Court of Appeal in The Hague), 2016-02-16

Summary

2016-06-01

2016/34 Transferee has no claim against transferor for paid leave accrued before transfer (NL)

A transferee cannot claim the value of leave accrued but not taken by transferred employees before a transfer from the transferor.

Gerechtshof Den Haag (Court of Appeal in The Hague), 2016-02-16

Case report

2016-03-01

Poland

2016/3 Supreme Court allows transferee to differentiate between ‘own’ and acquired employees (PL)

Paying employees acquired by way of the transfer of an undertaking less than the transferee’s original staff not discriminatory. The Supreme Court recently came to this conclusion based on a rather daring interpretation of a provision of national law aimed at transposing an EU directive. Although Polish law obligates employers to treat employees who perform the same work equally regardless of personal characteristics, the provision at issue should be read more narrowly.

Sąd Najwyższy (Supreme Court), 2015-11-04

Summary

2016-03-01

2016/3 Supreme Court allows transferee to differentiate between ‘own’ and acquired employees (PL)

Paying employees acquired by way of the transfer of an undertaking less than the transferee’s original staff not discriminatory. The Supreme Court recently came to this conclusion based on a rather daring interpretation of a provision of national law aimed at transposing an EU directive. Although Polish law obligates employers to treat employees who perform the same work equally regardless of personal characteristics, the provision at issue should be read more narrowly.

Sąd Najwyższy (Supreme Court), 2015-11-04