EC ruling may redefine staff transfer

A QUESTION referred to the European Court of Justice by a Belgian tribunal could give employers some influence in deciding which members of staff transfer automatically under the Acquired Rights Directive.

Barnett Alexander Chart employment solicitor Ruth Harvey says the terms of the the ARD could be radically redefined if the ECJ favours employers in its preliminary ruling on interpretation of Article 3 of the directive.

She says oral hearings on the issue could start later this year, although the final decision is not likely to be reached until mid-1996.

The ARD, translated into domestic law by the Transfer of Undertakings (Protection of Employment) Regulations 1981, was enacted to protect the rights of employees in the event of a transfer of all or part of a business.

Until now employers have been obliged to take on all staff when a business is transferred. However, the question before the court – C Rotsart de Hertaing v J Benoidt and Others – asks if there is a “possible choice for the transferor or transferee to transfer only part of the personnel concerned” when transferring a business.

“I would find it unlikely for the ECJ to find such choice consistent with the aims of the ARD,” says Harvey. “The whole purpose of the directive is to safeguard employees' rights automatically, although employees cannot be forced to go across.”