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 national law as he could have enforced against the transferor.’ and ‘whether, if despite dismissal they were entitled to retain the benefit of their previous terms, the employees either by initially agreeing terms with their new employers, or by continuing to work for the new employers or by accepting the statement of terms and conditions subsequently varied any entitlement to the previous terms and conditions.’
Held: A dismissal on a transfer of undertaking was actually a dismissal and not a nullity. The TUPE regulations added rights to take action for a dismissal, they did not change the underlying law against specific performance in employment law.
Lord Slynn said: ‘the existing rights of employees are to be safeguarded if there is a transfer. That means no more and no less than that the employee can look to the transferee to perform those obligations which the employee could have enforced against the transferor. The employer, be he transferor or transferee, cannot use the transfer as a justification for dismissal, but if he does dismiss it is a question for national law as to what those rights are. As I have already said, in English law there would as a general rule be no order for specific performance. The claim would be for damages for wrongful dismissal or for statutory rights including, it is true, reinstatement or re-engagement where applicable . . The Directive is to ‘approximate’ the laws of the Member States. Its purpose is to ‘safeguard’ rights on a transfer. The ‘rights’ of an employee must depend on national rules of the law of contract or of legislation. There is no Community law of contract common to Member States, nor is there a common system or remedies. The object and purpose of the Directive is to ensure in all member states that on a transfer an employee has against the transferee the rights and remedies which he would have had against the original employer.’ and
‘where there is a transfer of an undertaking and the transferee actually takes on the employee the contract of employment is automatically transferred so that, in the absence of a permissible variation, the terms of the initial contract go with the employee, who though he may refuse to go, cannot as a matter of public policy waive the rights which the Directive and the Regulations confer on him. Where the transferee does not take on the employees who are dismissed on transfer the dismissal is not a nullity though the contractual rights formerly available against the transferor remain intact against the transferee. For the latter purpose, an employee dismissed prior to the transfer contrary to Article 4(1), i.e. on the basis of the transfer, is to be treated as still in the employment of the transferor at the date of transfer’
Judges:
Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Steyn, Lord Clyde, Lord Hutton
Citations:
Times 30-Oct-1998, Gazette 25-Nov-1998, [1998] UKHL 37, [1999] 2 AC 52, [1998] 4 All ER 609, [1998] 3 WLR 1070
Links:
Statutes:
Transfer of Undertakings (Protection of Employment) Regulations 1981 (1981 No 1794), Acquired Rights Directive (77/187/EEC)
Jurisdiction:
England and Wales
Citing:
Cited – Defrenne v Sabena (No 2) ECJ 8-Apr-1976
ECJ The principle that men and women should receive equal pay, which is laid down by article 119, is one of the foundations of the community. It may be relied on before the national courts. These courts have a . .
Cited – Garland v British Rail Engineering Ltd (No 2) HL 22-Apr-1982
Under English law and under Community law, the national court should construe a regulation adopted to give effect to a Directive as intended to carry out the obligations of the Directive and as not being inconsistent with it if it is reasonably . .
Cited – von Colson and Kamann v Land Nordrhein-Westfalen ECJ 10-Apr-1984
LMA Art.177[Art.234] EC proceedings – Ms Van Colson had applied for a job with the prison service and Ms Harz had applied for a job with a private company Deutsche Tradex GmbH. Both had been rejected. The German . .
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 – Knud Wendelboe and Others v LJ Music Aps, In Liquidation ECJ 7-Feb-1985
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 . .
Cited – Foreningen 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 . .
Cited – P Bork International A/S, in liquidation v Foreningen af Arbejdsledere I Danmark ECJ 15-Jun-1988
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 . .
Appeal from – Meade and Another v British Fuels Ltd EAT 11-Mar-1996
. .
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 – Ann Watson Rask and Christensen v ISS Kantineservice A/S ECJ 12-Nov-1992
Europa Article 1(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 . .
Cited – Giuseppe 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 . .
Cited by:
Cited – Smith and Others v Trustees of Brooklands College EAT 5-Sep-2011
EAT TRANSFER OF UNDERTAKINGS – Varying terms of employment
The Employment Judge was entitled to hold that the agreed variation of the Claimants’ salary was not for a reason connected with a relevant TUPE . .
Lists of cited by and citing cases may be incomplete.
Employment, European
Updated: 20 May 2022; Ref: scu.90550