In Foreningen af Arbejdsledere i Danmark v Daddy's Dance Hall A/S (Daddy's Dance Hall) [1988] IRLR 315 ECJ , the ECJ held that the provisions of the Acquired Rights Directive are mandatory and "therefore independent of the will of the parties" to the employment contract, although post-transfer variations may be agreed that are permitted by national law "in cases other than the transfer of an undertaking".
David Malamatenios is a partner and Krishna Santra, Sandra Martins and Colin Makin are senior associates at Colman Coyle Solicitors. They round up the latest rulings.
The Court of Appeal has agreed that a transferee did not have an economic, technical or organisational (ETO) defence over the dismissal of two claimants as a result of harmonisation following a post-TUPE transfer redundancy process.
In DLA Piper's latest case report, the Employment Appeal Tribunal examined the TUPE provisions that mean that employees do not automatically transfer where the transferor is "under the supervision of an insolvency practitioner".
In Alemo-Herron and others v Parkwood Leisure Ltd Case C-426/11 ECJ, the ECJ held that "dynamic" clauses in contracts of employment that refer to collective agreements negotiated and adopted after the transfer are not enforceable against a transferee that has not been able to participate in the negotiating process.
The Court of Appeal has held that, where the reason for a TUPE-related dismissal is to continue running a business and to avoid liquidation, this can constitute an economical, technical or organisational (ETO) reason entailing changes in the workforce, meaning that such a dismissal is not automatically unfair.