The employees asserted unauthorised deductions from their wages. The company appealed against an order re-instating their claims. When employed by the council, the claimants had the right to pay increases in accordance with rates set by national negotiations, and claimed the benefit of increases negotiated after they had been transferred to the appellant. The employer argued that Werhof had limited the earlier UK decisions. The employees said that the TUPE regulations went beyond the Directive applied in Werhof.
Held: The company’s appeal was allowed. A second transferee of an undertaking was not bound a collective settlement agreed with the first public authority employer. The situation in Werhof was indistinguishable, and it ‘decided that article 3(1) of the Directive does not bear a dynamic interpretation in relation to the circumstances of cases like Mr Werhof’s, namely those in which there is a contractual term providing for employment terms to be fixed by reference to the terms of collective agreements negotiated from time to time.’
There was nothing in the TUPE Regulations to justify an interpretation that they went beyond the requirements of the Directive.
Rimer LJ, Lord Justice Ward, Lady Justice Smith
[2010] EWCA Civ 24, [2010] WLR (D) 16, [2010] ICR 793, [2010] IRLR 298
Bailii, Times, WLRD
Transfer of Undertakings (Protection of Employment) Regulations 1981, Council Directive 77/187/EEC (the Acquired Rights Directive)
England and Wales
Citing:
Appeal from – Alemo-Herron v Parkwood Leisure Ltd EAT 12-Jan-2009
EAT TRANSFER OF UNDERTAKINGS: Acquired rights directive
TRANSFER OF UNDERTAKINGS: Varying terms of employment
As a matter of construction of TUPE Reg 5(1), a contractual term entitling employees to . .
Cited – Whent and others v T Cartledge Ltd EAT 16-Dec-1996
The appellants had been employed by Brent. Their contracts provided that pay would be in accordance with NJC agreements as amended from time to time. Their employment transferred under TUPE to a private sector employer, who wrote to the employees . .
Cited – Glendale Grounds Management v Bradley EAT 19-Feb-1998
. .
Cited – BET Catering Services Ltd v Ball and others EAT 28-Nov-1996
Mrs Ball was an employee of a London Borough whose contract incorporated the NJC conditions. Following her TUPE transfer to BET, a private sector employer, the NJC promulgated terms that included pay increases. The issue was whether BET was obliged . .
Cited – Robertson v British Gas Corporation CA 1983
Collective agreements ordinarily create no legally enforceable obligations between a union and the employers. Akner LJ did not accept that the statutory statement of terms and conditions equally placed a heavy burden on the employee and employer in . .
Cited – Litster and Others v Forth Dry Dock and Engineering Co Ltd HL 16-Mar-1989
The twelve applicants had been unfairly dismissed by the transferor immediately before the transfer, and for a reason connected with the transfer under section 8(1). The question was whether the liability for unfair dismissal compensation . .
Cited – Hans Werhof v Freeway Traffic Systems GmbH and Co. KG ECJ 9-Mar-2006
The claimant’s employment was covered by a framework collective agreement and a wage agreement specific to his industry. The business was transferred to the defendant, who was not part of such schemes. An arrangement was proposed to vary his . .
Cited – Graham v Glendale Management Service Ltd CA 16-May-2003
The employee’s employment had been transferred to the respondent subject to his terms and conditions as with the local authority employer. Those terms included a clause applying normally national agreed rates of pay, but subsequent increases had not . .
Cited – Transport and General Workers Union v Swissport (UK) Ltd (in administration) and Another EAT 27-Jun-2007
EAT Transfer of undertakings – Acquired rights directive / Entity
1. The transferor provided ground handling services to the putative transferee. The Employment Tribunal fell into error in finding that there . .
Cited by:
Cited – Worrall and Others v Wilmott Dixon Partnership Ltd and Another EAT 9-Jul-2010
EAT CONTRACT OF EMPLOYMENT – Incorporation into contract
TRANSFER OF UNDERTAKINGS – Pensions and other terms
In this test case, the Claimant started his employment with Birmingham City Council on 29 . .
Appeal From – Parkwood Leisure Ltd v Alemo-Herron and Others SC 15-Jun-2011
The claimants had been employed by a local authority and then transferred to the respondents. They had had the benefit that their terms of employment were subject to collective agreement. The respondent was not part of the negotiation of later . .
At CA – Alemo-Herron and Others v Parkwood Leisure Ltd ECJ 19-Feb-2013
ECJ Opinion – Transfer of undertakings – Safeguarding of employees’ rights – Directive 2001/23/EC – Article 3(3) – Collective agreement applicable to the transferor and to the employee at the time of the transfer . .
Lists of cited by and citing cases may be incomplete.
Employment, European
Updated: 02 November 2021; Ref: scu.396408