Europa Council directive no 77/187 does not require the member states to enact provisions under which the transferee of an undertaking becomes liable in respect of obligations concerning holiday pay and compensation to employees who were not employed in the undertaking on the date of the transfer.
The existence or otherwise of a contract of employment or an employment relationship on the date of the transfer, within the meaning of article 3(1) of directive no 77/187, must be established on the basis of the rules of national law, subject however to observance of the mandatory provisions of the directive and, more particularly, article 4(1) thereof, concerning the protection of employees against dismissal by the transferor or the transferee by reason of the transfer.
Only those employed on the date of transfer can claim the benefit of Article 3 of the Directive. Whether a contract of employment or an employment relationship existed at such date: ‘must be established on the basis of the rules of national law, subject however to observance of the mandatory provisions of the directive and, more particularly, Article 4(1) thereof, concerning the protection of employees against dismissal by the transferor or the transferee by reason of the transfer.’ The Advocate General further expressed the opinion that: ‘Whether the remedy for such unlawful dismissal consists in a court order declaring that dismissal to be a nullity or the award of damages or some other effective remedy is for the Member States to determine.’
Citations:
C-19/83, R-19/83, [1985] EUECJ R-19/83
Links:
Cited by:
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 . .
Lists of cited by and citing cases may be incomplete.
European
Updated: 22 May 2022; Ref: scu.133589