In a transfer of undertakings, where the employee could show that the transfer of his employment to a new employer would lead to a real detriment, the transfer operated to entitle the employee to terminate his contract vis a vis the first employer and to claim damages for wrongful dismissal. The regulations had to be read so as to comply with the directive under which they had been made, and the intention of the directive was to protect rights, not to remove them.
Roch LJ discussed the need to apply the ECJ rulings on the interpretation of the Acquired Rights Directive: ‘That that is the correct reading and provides the answer to the first question is concluded, in my judgment, by the requirement that the Regulations must be read in a way which gives effect to the Directive as interpreted by the European Court.
Turning to the second question, ‘against whom is the employee to obtain his remedy?’ The European Court has decided that where a transfer of an undertaking takes place an employee is entitled to decide not to continue the contract of employment or employment relationship with the transferee. The Directive cannot be interpreted as obliging the employee to continue his employment relationship with the transferee. Where the employee decides not to continue with the transferee, the court has left it to Member States to provide whether in such cases the contract of employment or employment relationship must be regarded as terminated either by the employee or the employer. Member States may also provide that the contract of employment or employment relationship should be maintained with the transferor.’
Judges:
Roch LJ
Citations:
Times 18-Jan-2000
Statutes:
Transfer of Undertakings (Protection of Employment) Regulations 1981 (1981 No 1794)
Jurisdiction:
England and Wales
Cited by:
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, Contract
Updated: 10 May 2022; Ref: scu.81527