Transferees not bound by terms collectively agreed after a TUPE transfer
Is a TUPE transferee bound by terms of employment that are collectively negotiated following the transfer, but where it is not a party to the negotiations? To anyone not too familiar with TUPE, the answer must be ‘surely not’. However, this issue was far from clear and was only clarified by the Court of Justice of the European Union (CJEU) earlier this month (Alemo-Herron v Parkwood Leisure Ltd). It held that a transferee is not bound under TUPE by post-transfer collectively agreed terms when it cannot participate in the negotiation process.
The question focuses on whether TUPE should be given a ‘static’ interpretation (transferee only bound by pre-transfer terms) or a ‘dynamic’ one (in respect of transferring employees, the transferee is bound by post-TUPE negotiated changes, even where it is not a party to the negotiations). At the end of the day, the ‘static’ view won.
The decision is important to clients involved in public-to-private-sector transfers, in particular outsourcing. The next step is for the Supreme Court to apply the decision to the facts in Parkwood…
If you are registered and logged in to the site, click on the link below to read the rest of the Nabarro briefing. If not, please register or sign in with your details below.
News from Nabarro
News from The Lawyer
Briefings from Nabarro
One of the recent MIPIM highlights for me was a panel discussion focused on how HS2 will deliver economic growth to northern cities.
Nabarro partner Martin McKervey discusses the public/private funding of Sheffield’s planned new retail quarter.
Analysis from The Lawyer
Clients are more willing to bring claims against professional service providers but the risk to defendants is not as dramatic as it might seem
Real estate continues to be the key money spinner for Nabarro, which has always been known for its work in the UK property market, (although) last year results were up across the firm. Google’s ...