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Case report

2011-11-10

Germany

2012/15: Transfer of activities that do not form a separate unit at the transferee does not constitute a TOU (GE)

Following on from the ECJ’s ruling in Klarenberg, the Federal Labour Court (BAG) has held in two recent cases that the existence of an independent organisation at the transferor is a prerequisite for a transfer of undertaking.

Bundesarbeitsgericht (Federal Labour Court), 2011-11-10

Summary

2011-11-10

2012/15: Transfer of activities that do not form a separate unit at the transferee does not constitute a TOU (GE)

Following on from the ECJ’s ruling in Klarenberg, the Federal Labour Court (BAG) has held in two recent cases that the existence of an independent organisation at the transferor is a prerequisite for a transfer of undertaking.

Bundesarbeitsgericht (Federal Labour Court), 2011-11-10

Case report

2011-05-26

Netherlands

2011/20 Activity transferred 80/20% to A and B: employee goes across to A for 100% (NL)

A cleaning company had a contract with the owner of two buildings, A and B. The plaintiff, an employee of the cleaning company, spent about 80% of his working time supervising the cleaners in building A and the remaining 20% of his working time cleaning in building B. Following a competitive bid, his employer lost the contract in respect of building A to one competitor and the contract in respect of building B to another competitor. The court found that he transferred fully (100%) into the employment of the competitor that won the contract in respect of building A.

Rechtbank Den Haag (District Court of The Hague), 2011-05-26

Summary

2011-05-26

2011/20 Activity transferred 80/20% to A and B: employee goes across to A for 100% (NL)

A cleaning company had a contract with the owner of two buildings, A and B. The plaintiff, an employee of the cleaning company, spent about 80% of his working time supervising the cleaners in building A and the remaining 20% of his working time cleaning in building B. Following a competitive bid, his employer lost the contract in respect of building A to one competitor and the contract in respect of building B to another competitor. The court found that he transferred fully (100%) into the employment of the competitor that won the contract in respect of building A.

Rechtbank Den Haag (District Court of The Hague), 2011-05-26

Case report

2011-05-26

Germany

2012/1: Cross-border transfer of undertaking from Germany to Switzerland (GE)

The cross-border relocation of a German establishment to a foreign country can constitute a transfer of undertaking according to section 613a of the German Civil Code.

Bundesarbeitsgericht (Federal Labour Court), 2011-05-26

Summary

2011-05-26

2012/1: Cross-border transfer of undertaking from Germany to Switzerland (GE)

The cross-border relocation of a German establishment to a foreign country can constitute a transfer of undertaking according to section 613a of the German Civil Code.

Bundesarbeitsgericht (Federal Labour Court), 2011-05-26

Case report

2011-04-26

Netherlands

2011/36 Transferor’s duty to inform employees: Dutch court sets the bar high (NL)

In an outsourcing situation that would have qualified as a transfer of undertaking, the transferor requested an employee to transfer, not to the transferee, but to a subsidiary of the transferor, on unchanged terms of employment. The employee, unaware of his options and the consequences, accepted. Despite this, several years later, the employee claimed under the transfer of undertakings rules. The court held that in such a situation, the employee can indeed claim that there had been a transfer of undertaking, unless the transferor demonstrates that it informed the employee clearly of his options and the consequences of his choice at the time of the transfer.

Gerechtshof Arnhem-Leeuwarden (Court of Appeal Arnhem-Leeuwarden), 2011-04-26

Summary

2011-04-26

2011/36 Transferor’s duty to inform employees: Dutch court sets the bar high (NL)

In an outsourcing situation that would have qualified as a transfer of undertaking, the transferor requested an employee to transfer, not to the transferee, but to a subsidiary of the transferor, on unchanged terms of employment. The employee, unaware of his options and the consequences, accepted. Despite this, several years later, the employee claimed under the transfer of undertakings rules. The court held that in such a situation, the employee can indeed claim that there had been a transfer of undertaking, unless the transferor demonstrates that it informed the employee clearly of his options and the consequences of his choice at the time of the transfer.

Gerechtshof Arnhem-Leeuwarden (Court of Appeal Arnhem-Leeuwarden), 2011-04-26

Case report

2011-04-14

United Kingdom

2011/35 Resignation notice did not prevent transfer (UK)

An employee (Mr Marcroft) who had given his termination notice shortly before the business employing him transferred under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’), and who did not need to attend the office during the notice period, was nonetheless assigned to the undertaking. Accordingly, he could not assert that his employment had not transferred, thereby preventing the new owners of the business from enforcing a restrictive covenant in his contract.

Court of Appeal, 2011-04-14

Summary

2011-04-14

2011/35 Resignation notice did not prevent transfer (UK)

An employee (Mr Marcroft) who had given his termination notice shortly before the business employing him transferred under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’), and who did not need to attend the office during the notice period, was nonetheless assigned to the undertaking. Accordingly, he could not assert that his employment had not transferred, thereby preventing the new owners of the business from enforcing a restrictive covenant in his contract.

Court of Appeal, 2011-04-14