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 pay ‘in accordance with collective agreements negotiated from time to time by [the NJC]’ is protected on a TUPE transfer to the private sector so as to give a right to pay increases negotiated post-transfer. See Whent v Cartledge. This construction is unaffected by the subsequent construction of the Business Transfers Directive by the ECJ in Werhof holding that the Directive did not require such protection. The limitation to one year, or the earlier expiry of the relevant collective agreement, in Art 3(2) of the Directive was not transposed into TUPE Reg 6 and so UK treatment is, as is permitted by Art 7, more favourable than that in the Directive.
Employment Tribunal reversed. Permission to appeal.


McMullen QC J


[2009] UKEAT 0456 – 08 – 1201, [2009] ICR 703, [2009] IRLR 322, [2009] 2 CMLR 40




Insolvency Act 1986 11(3)(d), Transfer of Undertakings (Protection of Employment) Regulations 1981, Business Transfers Directive 77/187, Trade Union and Labour Relations (Consolidation) Act 1992 179


England and Wales


CitedBET 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 . .
CitedHans 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 . .
CitedAckinclose and others v Gateshead Metropolitan Borough Council EAT 20-Sep-2004
EAT Unlawful Deduction from Wages . .
CitedGraham 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 . .
CitedWhent 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 . .
CitedGlendale Grounds Management v Bradley EAT 19-Feb-1998
. .
CitedLitster 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 . .
CitedSigurdur A Sigurjonsson v Iceland ECHR 30-Jun-1993
The making compulsory of the membership of a specific organisation was a breach of the right of freedom of association.
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 11; Not necessary to . .
CitedOakley Inc v Animal Ltd. and others PatC 16-Mar-2005
. .
CitedTransport 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 . .
CitedGlennie v Independent Magazines (UK) Limited CA 17-Jun-1999
A party is under a duty to present his entire case at the first hearing in the Employment Tribunal. Where a claimant’s representative had decided to adopt a particular position in law when making representations to the original industrial tribunal, . .
CitedNorth Wales Training and Enterprise Council Ltd v Astley and others HL 21-Jun-2006
Civil servants had been transferred to a private company. At first they worked under secondment from the civil service. They asserted that they had protection under TUPE and the Acquired Rights Directive. The respondent said that there had only been . .

Cited by:

Appeal fromParkwood Leisure Ltd v Alemo-Herron and 23 Others CA 29-Jan-2010
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 . .
At EATParkwood 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 EATAlemo-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: 23 July 2022; Ref: scu.304527