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 a transfer over time, so as to diminish their periods of continuous employment. The matter had been referred to the ECJ, and now returned. The claimants now sought to argue that now that the date of the transfer was established they should be deemed to have been transferred on that date even though they remained formally civil servants.
Held: (Majority) The appeal was dismissed. The respondent employees had continuous employment with both the civil service and the appellants. ‘the sole reservation to the general rule to which the ECJ referred . . . of its judgment does not apply in this case. The respondents were in a position on or after the date of the transfer to choose of their own free will not to work for Newtec. But they did not make that choice. The fact is that they continued to do the same work in the area offices after the transfer of the undertaking to Newtec, albeit in the belief that they remained in the employment of the DoE. This leads inevitably to the conclusion that their contracts of employment were transferred automatically to Newtec with continuity of employment on the date of the transfer. ‘
Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Carswell, Lord Mance
[2006] UKHL 29, [2006] ICR 992, [2006] 4 All ER 27, [2006] IRLR 635, [2006] 1 WLR 2421
Bailii
Council Directive 77/187/EEC, Transfer of Undertakings (Protection of Employment) Regulations 1981 (SI 1981/1794) 5
England and Wales
Citing:
At ECJCeltec Ltd v John Astley and Others ECJ 26-May-2005
Europa Directive 77/187/EEC – Article 3(1) – Safeguarding of employees’ rights in the event of transfers of undertakings – Transferor’s rights and obligations arising from a contract of employment or from an . .
First House of LordsCeltec Limited v Astley and others HL 10-Nov-2003
The employments of civil servants had been transferred to the defendant company. There had been some delay between their resignations and the new arrangements. The employee claimed the protection of the directive, saying that there had been a . .
At EATCeltec Limited v John Astley Julie Owens, Deborah Lynn Hawkes EAT 5-Oct-2001
The employer appealed a finding that there had been continuity of employment between itself and a previous employer. The employees had sought a statement as to their terms of employment. The employer was a training and enterprise council, to whom . .
At Court of AppealJ Astley and others v Celtec Ltd CA 19-Jul-2002
Civil servants had been transferred to Training and Enterprise Councils in 1990, and resigned from the Civil Service in 1993. They appealed a decision that there had not been a transfer of an undertaking, and that they had continuity of employment. . .
CitedGiuseppe d’Urso, Adriana Ventadori and others v Ercole Marelli Elettromeccanica Generale SpA ECJ 25-Jul-1991
Europa 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, businesses or parts of . .
CitedRotsart de Hertaing v Benoidt and IGC Housing Service (In Liquidation) and Another ECJ 14-Nov-1996
ECJ Safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses – Transfer to the transferee of the rights and obligations arising from a contract of employment . .
CitedAmministrazione Delle Finanze Dello Stato v Simmenthal SpA (No 2) ECJ 9-Mar-1978
ECJ The Court of Justice considered a reference for a preliminary ruling, pursuant to article 1977 of the Treaty, as having been validly brought before it so long as the reference has not been withdrawn by the . .
CitedForeningen Af Arbejdsledere I Danmark v A/S Danmols Inventar, In Liquidation ECJ 11-Jul-1985
Europa Article 1(1) of Council Directive no 77/187 does not apply to the transfer of an undertaking, business or part of a business where the transferor has been adjudged insolvent and the undertaking or business . .
CitedArie Botzen And Others v Rotterdamsche Droogdok Maatschappij Bv ECJ 7-Feb-1985
ECJ Article 3(1) covered the rights and obligations of the transferor arising from a contract of employment or an employment relationship existing on the date of the transfer and entered into with employees who, . .
CitedForeningen Af Arbejdsledere I Danmark v Daddy’s Dance Hall A/S ECJ 10-Feb-1988
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 . .
CitedKatsikas and others v Konstantinidis and others ECJ 16-Dec-1992
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 . .
CitedBerg And Busschers v Besselsen ECJ 5-May-1988
Europa Social Policy – Article 3(1) of Directive 77/187/EEC which concerns the safeguarding of employees’ rights in the event of transfers of undertakings must be interpreted as meaning that after the date of . .
CitedFoster and others v British Gas plc ECJ 12-Jul-1990
The defendants (BGC) were nationalised suppliers of gas. BGC was by statute a body with a legal persona operating under the supervision of the authorities. Its members were appointed by the Secretary of State, who also determined their remuneration. . .
CitedRedmond Stichting v Bartol and others (Judgment) ECJ 19-May-1992
Europa Article 1(1) 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, businesses or . .
CitedFoster v British Gas plc HL 1991
The House was asked for a preliminary ruling before a referral of the case to the ECJ as to whether the applicants could rely as against the British Gas Corporation on an unimplemented Council Directive. Although the gas industry had been privatised . .

Cited by:
CitedRoyal Mail Group Ltd v Communication Workers Union CA 14-Oct-2009
Royal Mail had transferred some of its businesses. The union complained that the company’s explanation of the effect of the transfer to its members was incorrect in law. The EAT had found that the employer need only tell the employee of its honestly . .
CitedAlemo-Herron v Parkwood Leisure Ltd EAT 12-Jan-2009
EAT TRANSFER OF UNDERTAKINGS: Acquired rights directive
TRANSFER OF UNDERTAKINGS: Varying terms of employment
As a matter of construction of TUPE Reg 5(1), a contractual term entitling employees to . .

These lists may be incomplete.
Updated: 30 January 2021; Ref: scu.242664