Botzen v Rotterdamsche Droogdok Maatschappij BV
Where part of an undertaking is transferred, only the employees assigned to that part, and not those who worked for the whole undertaking, transfer to the new employer.
Facts
A Dutch company which ran a shipyard went into liquidation, and part of its business was transferred to a new company. Several employees, who worked in the general departments of the company, such as personnel and administration, and who also performed some work for the transferred part, claimed that they should have been transferred to the new company under the Acquired Rights Directive.
Legal principle
The Court of Justice held that only the employees who were wholly engaged in the part of the undertaking which was transferred were covered by the directive. The court said that an employment relationship is essentially characterised by the link between the employee and the part of the undertaking or business to which he is assigned to carry out his duties. Employees who worked in the general departments of the transferor, and who used some of the assets transferred or performed some duties for the part transferred, were not transferred. The test of assignment is now reflected in the TUPE Regulations.
Related cases on redundancy and transfer of undertakings
- Celtec Ltd v Astley [2006] UKHL 29
- Cheesman v R Brewer Contracts Ltd [2001] IRLR 144
- High Table Ltd v Horst [1998] ICR 409
- ISS Facility Services NV v Govaerts Case C-344/18, EU:C:2020:239
- Litster v Forth Dry Dock & Engineering Co Ltd [1990] 1 AC 546
- Metropolitan Resources Ltd v Churchill Dulwich Ltd [2009] ICR 1380
- Murray v Foyle Meats Ltd [1999] UKHL 30, [2000] 1 AC 51
- Safeway Stores plc v Burrell [1997] ICR 523
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