ECJ Article 3(1) of Directive 77/187 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings is to be interpreted as not precluding an employee of the transferor on the date of the transfer of the undertaking, within the meaning of Article 1(1) of the directive, from objecting to the transfer of his contract of employment or employment relationship to the transferee. The directive does not, however, require Member States to provide that, in the event of the employee deciding of his own accord not to continue with the contract of employment or employment relationship with the transferee, the contract or relationship should be maintained with the transferor. Neither does the directive preclude this. In such a case, it is for the Member States to determine what the fate of the contract of employment or employment relationship with the transferor should be.
The expression ‘laws, regulations or administrative provisions’ within the meaning of Article 7 of Council Directive 77/187 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings must be understood as meaning the laws, regulations or administrative provisions of a Member State as they are interpreted by the courts of that State.
The claimant employees objected to becoming employees of the transferee, an attitude which the transferor (who then dismissed them) argued was not open to them in the light of the Directive.
Held: The Directive did not have the purpose or effect of compulsorily transferring an employee’s employment contract or relationship against his or her will, but that, in such a case, it was for the law of the relevant Member State to determine whether the contract or relationship was to be regarded as terminated by the transferor or transferee or to be maintained with the transferor.
Citations:
C-132/91, [1992] EUECJ C-132/91, [1992] ECR I – 6577, [1993] IRLR 179, C-138/91, C-139/91
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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 – 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 – Wilson and Others v St Helens Borough Council; Meade and Another v British Fuels Ltd HL 29-Oct-1998
The House faced two questions regarding the protection given by the Regulations: ‘whether the dismissed employee can compel the transferee to employ him or whether he is given the right to enforce as against the transferee such remedies under . .
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 . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
European, Employment
Updated: 01 June 2022; Ref: scu.160708