Lord Johnston said: ‘We would pause to reflect that if the withholding of consent is, as we think it is, the proper consideration, it should not be difficult in most cases to distinguish between such withholding of consent and mere expressions of concern or unwillingness, which may still be consistent with accepting the inevitable. Thus, to protest in advance of a transfer, which could be construed to be objecting, would not amount to an objection, in our opinion, in terms of the Regulations, unless it is translated into an actual refusal to consent to the transfer which, in turn, is communicated to the relevant person or persons, before the transfer takes place.’
Lord Johnston discussed the right of an employee to object to a transfer of his employment contract: ‘Having said that, it seems to us that the scheme of this particular piece of legislation is clear, and does not require to be approached in any artificial or so-called purposive way. What is intended is to protect the right of an employee not to be transferred to another employer against his will, and it is ‘against his will’ that is the executive part of the process. We, therefore, construe the word ‘object’ as effectively meaning a refusal to accept the transfer, and it is equally clear from reg. 5(4A) that that state of mind must be conveyed to either the transferor or transferee. But we do not consider it necessary to lay down any particular method whereby such a conveyance could be effected. In our opinion, it could be by either word or deed, or both, and each case must be looked at on its own facts to determine whether there was a sufficient state of mind to amount to a refusal on the part of the employee to consent to the transfer, and that that state of mind was in fact brought to the attention of either the transferor or the transferee. Furthermore, it must be so brought to their attention before the date of the transfer because, under reg. 5(4B), the transfer itself automatically terminates the contract. Accordingly, if the terms of reg. 5(4A) are not satisfied in fact, there is an automatic transfer on the appropriate date.’
Judges:
Lord Johnston
Citations:
[1996] IRLR 427
Cited by:
Approved – Senior Heat Treatment Ltd v Bell and others EAT 20-Jun-1997
The employer appealed a finding as to the period of continuous employment of the claimants. Before a transfer of the undertaking to the employer, the former emloyer had paid redundancy payments to several employees, some whom in practice left to . .
Cited – New ISG Ltd v Vernon and others ChD 14-Nov-2007
The claimant sought to continue an interim injunction obtained without notice. The claimant sought to restrain former employees misusing information it claimed they had taken with them. The claimants said that having objected to a transfer of their . .
Lists of cited by and citing cases may be incomplete.
Employment, Scotland
Updated: 01 May 2022; Ref: scu.270283
