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 terms, and the employees appealed now against a finding that the respondent was not bound by to pay an increase negotiated under it.
Held: The answer was not acte clair, and the court referred the issue as to whether article 3(1) of the Directive precludes national courts from giving a dynamic interpretation to regulation 5 of TUPE in the circumstances of this case to the Court of Justice of the European Union. The issue was whether the effect of regulations 5(1) and 5(2) of TUPE was that the appellants were entitled to the benefit of increases in pay negotiated by the NJC after they were transferred into the employment of Parkwood.
In some respects TUPE was more generous to employees than the Directive, but Parliament must be taken to have intended to do no more, when it was enacting regulations 5(1) and (2), than implement article 3(1) of the Directive. The same must be said of its intention when it was enacting the 2006 Regulations.
Lord Hope, Deputy President, Lord Walker, Lord Brown, Lord Kerr, Lord Dyson
[2011] UKSC 26, UKSC 2010/0035, [2011] 4 All ER 800, [2011] 3 CMLR 29, [2011] ICR 920, [2011] IRLR 696
Bailii, Bailii Summary, SC Summary, SC
Transfer of Undertakings (Protection of Employment) Regulations 1981 (SI 1981/1794), Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246), Council Directive 77/187/EEC of 14 February 1977 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 businesses 5, Council Directive 98/50/EC (OJ 1998 L201), Council Directive 2001/23/EC of 12 March 2001 (OJ 2001 L82), Trade Union Reform and Employment Rights Act 1993 33(4)(a), Trade Union and Labour Relations (Consolidation) Act 1992 179
England and Wales
Citing:
At EAT – Alemo-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 . .
Appeal From – Parkwood Leisure Ltd v Alemo-Herron and 23 Others CA 29-Jan-2010
The employees asserted unauthorised deductions from their wages. The company appealed against an order re-instating their claims. When employed by the council, the claimants had the right to pay increases in accordance with rates set by national . .
Cited – Whent and others v T Cartledge Ltd EAT 16-Dec-1996
The appellants had been employed by Brent. Their contracts provided that pay would be in accordance with NJC agreements as amended from time to time. Their employment transferred under TUPE to a private sector employer, who wrote to the employees . .
Cited – Graham v Glendale Management Service Ltd CA 16-May-2003
The employee’s employment had been transferred to the respondent subject to his terms and conditions as with the local authority employer. Those terms included a clause applying normally national agreed rates of pay, but subsequent increases had not . .
Cited – BET Catering Services Ltd v Ball and others EAT 28-Nov-1996
Mrs Ball was an employee of a London Borough whose contract incorporated the NJC conditions. Following her TUPE transfer to BET, a private sector employer, the NJC promulgated terms that included pay increases. The issue was whether BET was obliged . .
Cited – Transport and General Workers Union v Swissport (UK) Ltd (in administration) and Another EAT 27-Jun-2007
EAT Transfer of undertakings – Acquired rights directive / Entity
1. The transferor provided ground handling services to the putative transferee. The Employment Tribunal fell into error in finding that there . .
Cited – Hans Werhof v Freeway Traffic Systems GmbH and Co. KG ECJ 9-Mar-2006
The claimant’s employment was covered by a framework collective agreement and a wage agreement specific to his industry. The business was transferred to the defendant, who was not part of such schemes. An arrangement was proposed to vary his . .
Cited – Pickstone v Freemans Plc HL 30-Jun-1988
The claimant sought equal pay with other, male, warehouse operatives who were doing work of equal value but for more money. The Court of Appeal had held that since other men were also employed on the same terms both as to pay and work, her claim . .
Cited – Litster and Others v Forth Dry Dock and Engineering Co Ltd HL 16-Mar-1989
The twelve applicants had been unfairly dismissed by the transferor immediately before the transfer, and for a reason connected with the transfer under section 8(1). The question was whether the liability for unfair dismissal compensation . .
Cited – Katsikas 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 . .
Cited – Castle View Services Limited v Howes and Everett and Fitzpatrick and Dalglish SCS 29-Feb-2000
Though the Council Directive did not apply to sea-going vessels, the Court held that the crews of such vessels were not excluded from the benefit of the regulations. . .
Cited – Criminal proceedings against Lindqvist ECJ 6-Nov-2003
Mrs Lindqvist had set up an internet site for her local parish containing information about some of her colleagues in the parish. She gave names, jobs, hobbies and in one case some of the person’s employment and medical details. The Court decided . .
Cited – Numast and Another v P and O Scottish Ferries and Others EAT 23-Feb-2005
EAT Section 2 of the European Communities Act does not render ultra vires the extension of TUPE protection to workers for whom it is not required by the Acquired Rights Directive (in this case, seafarers employed . .
Cited – Young, James and Webster v The United Kingdom ECHR 13-Aug-1981
Employees claimed religious objections to being obliged to members of a Trades Union.
Held: It is the obligation of states which have ratified the Convention to secure to everyone within their jurisdiction the rights and freedoms which it . .
Cited – Gustafsson v Sweden ECHR 25-Apr-1996
Hudoc No violation of Art. 11; No violation of Art. 6-1; No violation of Art. 13; No violation of P1-1
The right to freedom of association under article 11 of the European Convention on Human Rights includes . .
Cited – Hurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
Cited by:
At SC – Alemo-Herron and Others v Parkwood Leisure Ltd ECJ 19-Feb-2013
ECJ Opinion – Transfer of undertakings – Safeguarding of employees’ rights – Directive 2001/23/EC – Article 3(3) – Collective agreement applicable to the transferor and to the employee at the time of the transfer . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.440731
