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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

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

2011-10-25

Netherlands

2011/52: The Albron case following the ECJ's ruling (NL)

Following the ECJ’s 2010 ruling in the Albron case, the Dutch referring court has now rendered a decision that is likely to affect legal practice in the Netherlands hugely, by which employees who have been working on a permanent basis for a company that transfers its business are protected by the transfer of undertaking rules even though they were not contractually employed by the company.

Gerechtshof Amsterdam (Court of Appeal Amsterdam), 2011-10-25

Summary

2011-10-25

2011/52: The Albron case following the ECJ's ruling (NL)

Following the ECJ’s 2010 ruling in the Albron case, the Dutch referring court has now rendered a decision that is likely to affect legal practice in the Netherlands hugely, by which employees who have been working on a permanent basis for a company that transfers its business are protected by the transfer of undertaking rules even though they were not contractually employed by the company.

Gerechtshof Amsterdam (Court of Appeal Amsterdam), 2011-10-25

Court watch

2011-09-06

ECJ 6 September 2011, case C-108/10 (Ivana Scattolon - v - Ministerio dell’ Instruzione, dell’ Università et della Ricerca), Employees who transfer/refuse to transfer, collective agreements

The takeover by a public authority of a Member State of staff employed by another public authority and entrusted with the supply to schools of auxiliary services including, in particular, tasks of maintenance and administrative assistance constitutes a transfer of an undertaking falling within Council Directive 77/187/EEC [ ... ], where the staff consist in a structured group of employees who are protected as workers by virtue of the domestic law of that Member State.

European Court of Justice (ECJ), 2011-09-06

Summary

2011-09-06

ECJ 6 September 2011, case C-108/10 (Ivana Scattolon - v - Ministerio dell’ Instruzione, dell’ Università et della Ricerca), Employees who transfer/refuse to transfer, collective agreements

The takeover by a public authority of a Member State of staff employed by another public authority and entrusted with the supply to schools of auxiliary services including, in particular, tasks of maintenance and administrative assistance constitutes a transfer of an undertaking falling within Council Directive 77/187/EEC [ ... ], where the staff consist in a structured group of employees who are protected as workers by virtue of the domestic law of that Member State.

European Court of Justice (ECJ), 2011-09-06

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