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Case report

2013-06-13

Luxembourg

2013/50 Did a beauty parlour retain its identity? (LU)

The owner of a small beauty parlour transferred to another person the lease of the premises, the furniture, equipment and stock, the activities contracts, the right to use the parlour’s business name and the obligation to provide existing customers with pre-paid services, but he didn’t transfer the staff. Did this transaction trigger a transfer of undertaking? No, said the court of first instance, yes, said the Court of Appeal. The author is critical.

Cour d’appel (Court of Appeal), 2013-06-13

Summary

2013-06-13

2013/50 Did a beauty parlour retain its identity? (LU)

The owner of a small beauty parlour transferred to another person the lease of the premises, the furniture, equipment and stock, the activities contracts, the right to use the parlour’s business name and the obligation to provide existing customers with pre-paid services, but he didn’t transfer the staff. Did this transaction trigger a transfer of undertaking? No, said the court of first instance, yes, said the Court of Appeal. The author is critical.

Cour d’appel (Court of Appeal), 2013-06-13

Case report

2013-02-21

Austria

2013/17 Presumption that dismissal was on account of transfer and not for an ETO reason not rebutted (AT)

If a worker is dismissed shortly before or after the transfer of an enterprise this constitutes a strong indication that the dismissal was based solely on the transfer. The employer must then prove that there is an objective reason for the dismissal based on economic, technical or organisational grounds.

Oberster Gerichtshof (Austrian Supreme Court), 2013-02-21

Summary

2013-02-21

2013/17 Presumption that dismissal was on account of transfer and not for an ETO reason not rebutted (AT)

If a worker is dismissed shortly before or after the transfer of an enterprise this constitutes a strong indication that the dismissal was based solely on the transfer. The employer must then prove that there is an objective reason for the dismissal based on economic, technical or organisational grounds.

Oberster Gerichtshof (Austrian Supreme Court), 2013-02-21

Case report

2011-12-22

Norway

2012/14: Airline catering company is capitalintensive (NO)

In a line of recent cases before the Norwegian courts, defendants with claims of transfer of undertakings against them have stressed the need for an economic legal entity to be identified, arguing that the transfer of an undertaking cannot take place where no such entity existed pretransfer. In this case, which concerned the transfer of a contract for catering services to an airline, the Supreme Court, perhaps chose not to rule on whether an economic entity had been subject to transfer - but combined this question with the issue of retention of identity, and found no transfer had taken place.

Hojesteret (Supreme Court), 2011-12-22

Summary

2011-12-22

2012/14: Airline catering company is capitalintensive (NO)

In a line of recent cases before the Norwegian courts, defendants with claims of transfer of undertakings against them have stressed the need for an economic legal entity to be identified, arguing that the transfer of an undertaking cannot take place where no such entity existed pretransfer. In this case, which concerned the transfer of a contract for catering services to an airline, the Supreme Court, perhaps chose not to rule on whether an economic entity had been subject to transfer - but combined this question with the issue of retention of identity, and found no transfer had taken place.

Hojesteret (Supreme Court), 2011-12-22

Case report

2011-12-15

Germany

2013/16 Bundesarbeitsgericht, applying Süzen, holds that only actual takeover of staff, not an offer to do so, is relevant (GE)

A security company lost its contract to a competitor. The competitor offered employment to all of the employees involved, albeit at a lower salary. Half of the employees accepted the offer and were hired by the competitor. One of the remaining employees claimed that the service provision change constituted a transfer of undertaking and that he had therefore become an employee of the competitor at his former salary level. The court found that the service provision change did not constitute a transfer of undertaking, given that the activity in question was labour-intensive and that only half of the employees involved in that activity went across to the competitor. Interestingly, the Bundesarbeitsgericht considered the fact that the competitor offered employment to all of the employees involved in the activity to be irrelevant.

Bundesarbeitsgericht (Federal Labour Court), 2011-12-15

Summary

2011-12-15

2013/16 Bundesarbeitsgericht, applying Süzen, holds that only actual takeover of staff, not an offer to do so, is relevant (GE)

A security company lost its contract to a competitor. The competitor offered employment to all of the employees involved, albeit at a lower salary. Half of the employees accepted the offer and were hired by the competitor. One of the remaining employees claimed that the service provision change constituted a transfer of undertaking and that he had therefore become an employee of the competitor at his former salary level. The court found that the service provision change did not constitute a transfer of undertaking, given that the activity in question was labour-intensive and that only half of the employees involved in that activity went across to the competitor. Interestingly, the Bundesarbeitsgericht considered the fact that the competitor offered employment to all of the employees involved in the activity to be irrelevant.

Bundesarbeitsgericht (Federal Labour Court), 2011-12-15

Case report

2011-11-22

Czech Republic

2012/2: One company cannot transfer staff to another against their will in the absence of a transfer of undertaking (CZ)

An employment transfer may only take place if there is a legal basis for it. Provision for a transfer of tasks or activities (or part of them) from one employer to another — which is a legal basis for employment transfer under the Labour Code — must be made in the contract or in another legal act, or it must consist of another legal fact. In this case, a contract between two employers stating that employees would be transferred was held not to be sufficient legal grounds for a transfer and, as such, the transfer was invalid.

Nejvyšší soud (Czech Supreme Court), 2011-11-22

Summary

2011-11-22

2012/2: One company cannot transfer staff to another against their will in the absence of a transfer of undertaking (CZ)

An employment transfer may only take place if there is a legal basis for it. Provision for a transfer of tasks or activities (or part of them) from one employer to another — which is a legal basis for employment transfer under the Labour Code — must be made in the contract or in another legal act, or it must consist of another legal fact. In this case, a contract between two employers stating that employees would be transferred was held not to be sufficient legal grounds for a transfer and, as such, the transfer was invalid.

Nejvyšší soud (Czech Supreme Court), 2011-11-22