In its opinion of 26 March 2020[i], the European Court of Justice (ECJ) further detailed the
conditions of application of the EU Directive 2001/23/EC[ii] (“TUPE Directive”) in case of multiple transferees.
The case concerns a Belgian worker, employed by the cleaning company ISS, who was responsible for the cleaning of 3 different lots in Ghent city. In 2013, the city of Ghent issued a call for tender concerning these 3 lots and as a result, the tender submitted by ISS was unsuccessful. Lots 1 and 3 were awarded to Atalian, while lot 2 was awarded to Cleaning Masters NV.
Drawing on this and in application of the TUPE Directive, ISS informed the project manager responsible for the 3 lots that she would no longer be employed by ISS as from 1 September 2013, beginning date of the tender, and would become an employee of Atalian from that date on. Atalian on the other hand contested the application of the TUPE Directive and argued that the employee was still employed by ISS.
In this context, the employee brought a claim before the courts against both ISS and Atalian seeking the payment of an indemnity in lieu of notice.
The referring court seized of the matter considered that the TUPE Directive was indeed applicable to the case at stake and asked the following questions: under the TUPE Directive, what are the consquences of a transfer of undertaking to multiple transferees, where the employee works across all parts transferred? Should the employment contract be transferred in its entirety
to the transferee with whom the worker is to perform her principal task? Or
should the employment contract be split between each of the transferees, in
proportion to the worker’s employment with them?
The ECJ favoured the latter option, holding that splitting the employment contract between each transferee was the best option to achieve the TUPE’s Directive purpose: to safeguard the employee’s terms of employment, while not disregarding the economic interests of the transferee.
Nevertheless, the ECJ simultaneously recognized that splitting a
full-time employment contract into multiple part-time employment contracts
could precisely lead to less favourable employment conditions for the employee.
The ECJ resolved this seemingly paradoxical reasoning adding that, where the employment terms do in fact deteriorate as a result of the abovementioned interpretation, the TUPE Directive allows the employment contract to be terminated by the employee, under the responsibility of the transferee(s). The question
whether such termination would be regarded as (un)fair dismissal at the
national level remains open.
[i] ECJ, 26 March 2020, ISS
Facility Services NV v Sonia Govaerts, case C-344/18
[ii] Council Directive 2001/23/EC
of 12 March 2001 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 undertakings or businesses, O.J., L 082 , 22.03.2001, p.16 – 20