The claimant, Mr Tellerup, was employed as a restaurant manager by the transferor, Irma Catering A/S. When its lease was terminated it dismissed all staff. Mr Tellerup’s statutory period of notice expired on 30 April 1983. But it continued to run the business with the same staff until 25 February 1983, from when a new lease was concluded between the landlord and Daddy’s Dance Hall A/S. Daddy’s Dance Hall immediately re-employed the the staff including Mr Tellerup in the same jobs. The new contract with Mr Tellerup stated his remuneration, formerly of commission, would become a fixed salary. A trial period of three months was agreed on, during which either side could give 14 days’ notice. This was a shorter period of notice than that to which Mr Tellerup was entitled if his employment with the transferor was taken into account. He was dismissed on 26 April 1983 with 14 days’ notice.
Held: One question was whether an employee may waive rights conferred on him by the Directive if the disadvantages resulting from his waiver are offset by such benefits that, taking the matter as a whole, he is not placed in a worse position. The court gave a qualified answer saying that the purpose of the Directive is to ensure that the rights of employees affected by the transfer of an undertaking are safeguarded, adding that: ‘Since this protection is a matter of public policy, and therefore independent of the will of the parties to the contract of employment, the rules of the Directive, in particular those concerning the protection of workers against dismissal by reason of the transfer, must be considered to be mandatory, so that it is not possible to derogate from them in a manner unfavourable to employees. The court said that it followed that employees are not entitled to waive the rights conferred on them by the Directive, and that those rights cannot be restricted even with their consent. But the Directive could be relied on only to ensure that the employee is protected in his relations with the transferee to the same extent as he was in his relations with the transferor under the legal rules of the Member State. ‘Consequently, in so far as national law allows the employment relationship to be altered in a manner unfavourable to employees in situations other than the transfer of an undertaking, in particular as regards their protection against dismissal, such an alternative is not precluded merely because the undertaking has been transferred in the meantime and the agreement has therefore been made with the new employer.’
Citations:
[1989] 2 CMLR 517, C-324/86, R-324/86, [1988] EUECJ R-324/86, [1988] ECR 739, [1989] ICR 330, [1988] IRLR 315
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Jurisdiction:
European
Cited by:
Cited – North 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 – Astle and others v Cheshire County Council and Omnisure Property Management Ltd EAT 20-May-2004
EAT Issue whether Employment Tribunal asked itself the right question and/or was perverse in failing to find that the principal reason for the Council’s changed arrangements was to thwart TUPE and hence that the . .
Cited – Wilson and Others v St Helens Borough Council EAT 10-Apr-1996
Variation of employment terms which arose on a transfer of an undertaking were ineffective. Mummery P J said: ‘It is also an error on the part of the tribunal to conclude that the affirmation of the contract by the subsequent conduct of the parties . .
Cited – London Metropolitan University v Sackur and others EAT 17-Aug-2006
The employees complained that their contracts had been varied after their transfer to a new employer.
Held: The reason for the variation was harmonisation.
McMullen QC J set out the test for the passage of time after a transfer and its . .
Cited – Smith and Others v Trustees of Brooklands College EAT 5-Sep-2011
EAT TRANSFER OF UNDERTAKINGS – Varying terms of employment
The Employment Judge was entitled to hold that the agreed variation of the Claimants’ salary was not for a reason connected with a relevant TUPE . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 11 September 2022; Ref: scu.215557