ECJ Although it is true that, unless otherwise expressly provided, Directive 77/187 relating to the safeguarding of employees’ rights in the event of transfers of undertakings may be relied upon solely by workers whose contract of employment or employment relationship is in existence at the time of the transfer, and that the existence or otherwise of such a contract or relationship must be assessed on the basis of national law, it is still necessary to comply with the mandatory provisions of the directive concerning the protection of employees from dismissal as a result of the transfer.
Accordingly, the employees whose contract of employment or employment relationship was terminated with effect from a date prior to that of the transfer, contrary to Article 4 (1) of the directive, must be regarded as still in the employ of the undertaking on the date of the transfer, with the result, in particular, that the employer’ s obligations towards them are automatically transferred from the transferor to the transferee. In order to ascertain whether the employees were dismissed solely as a result of the transfer, it is necessary to take into consideration the objective circumstances in which the dismissal took place such as, in particular, the fact that it took effect on a date close to that of the transfer and that the employees in question were taken on again by the transferee.
Article 1(1) of Directive 77/187 is to be interpreted as meaning that the directive applies where, after giving notice bringing the lease to an end or upon termination thereof, the owner of an undertaking retakes possession of it and thereafter sells it to a third party who shortly afterwards brings it back into operation, which had ceased upon termination of the lease, with just over half of the staff that was employed in the undertaking by the former lessee, provided that the undertaking in question retains its identity.
Citations:
C-101/87, R-101/87, [1988] EUECJ R-101/87, [1989] IRLR 41
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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, Employment
Updated: 23 May 2022; Ref: scu.134593