1. Moving Target or Standing Still?

2. Damian Brown QC 16 th January 2013 TUPE obligations: dynamic or static?

3. What will be covered TUPE history Previous domestic cases Werhof The facts of Alemo-Herron The EAT The Court of Appeal The Supreme Court Implications

4. TUPE history Settled law that: –On transfer TUPE protection is engaged –New employer is bound by pre-existing contractual terms –Fine when individual under Reg 4, Art 3(1) –what about collective – can a pay determination method established by coll ag transfer ?

5. TUPE history –Art 3(2) of Directive provides for compliance with any collective agreement until expiry –Can limit to one year but UK has not chosen to do so in Reg 6

6. Earlier cases – Whent v T Cartledge Ltd [1997] IRLR 153 [1997] IRLR 153 –once accepted that reg 5 of TUPE applied and that there had been no relevant subsequent variation in the contract of employment, the issue simply one of the true meaning of the clause that provided that the employees' pay would be in accordance with the agreement made by the NJC as amended from time to time, and that there was no apparent reason why the transfer should cause any change in the meaning of these words –Argument on freedom of association rejected

7. Earlier cases Glendale Grounds Management v Bradley (19 February 1998, unreported) Glendale Managed Services v Graham [2003] IRLR 465[2003] IRLR 465 –both raised issues whether a different result followed because of particular words used in the employee's contract. Bradley's - the particular terms of the contract required the approval of the employer for the time being to any new negotiated terms Graham's clause provided that the rate of remuneration would 'normally' be in accordance with the NJC.

8. Werhof v Freeway Traffic Systems GmbH & Co KG Case [2006] IRLR 400, [2005] ECR I-2397[2006] IRLR 400 W’s employment governed by coll ag negotiated by union (of which he was not a member) and employers association (of which employer was member) Undertaking transferred New collective agreement would apply and new employer not member of association ECJ pointed to ARD protecting employees `at the date’ of transfer: no mention of future Whilst ARD protects employee cannot disregard rights of transferee

9. Werhof v Freeway Traffic Systems GmbH & Co KG Conclusion was slightly guarded: '… Article 3(1) of the Directive must be interpreted as not precluding, in a situation where the contract of employment refers to a collective agreement binding the transferor, that the transferee, who is not a party to such an agreement, is not bound by collective agreements subsequent to the one which was in force at the time of the transfer of the business.‘ my emphasis

10. Alemo-Herron - the Facts Cs employed by Lewisham T and cs to be determined by NJC Transferred to CCL Ltd Continued to receive NJC pay rises etc Further transfer to Parkwood ET held Parkwood not bound in future

11. The EAT HHJ McMullen QC Dynamic approach following Whent On all fours with Whent Not persuaded by Werhof Took comfort from Article 3(2) not transposed into domestic legislation Not impressed by employer’s freedom of association arguments

12. Court of Appeal Arguments were – Werhof binding –Domestic legislation should be interpreted in accordance with ARD –Union argued that Werhof simply established that ARD did not require states to establish a regime whereby transferees continued to be bound nor did it prohibit –Nothing to prohibit more favourable rights than ARD

13. Court of Appeal Held: –But for Werhof employees claim unanswerable –Dynamic interpretation entirely in accordance with domestic legislation and common law –However W erhof clearly rejects that and ECJ is binding –Not deal with freedom of association argument but did regard being bound ad infinitum as `unsatisfactory

14. The Supreme Court Referred question to the ECJ Lord Hope suggests `dynamic interpretation’. If solely question of UK law outcome would be clear: question of freedom of contract and consistency with Whent, Glendale Lord Hope noted that the preamble to the Directive did not talk about protecting employers Directive not about harmonisation and allows more favourable provisions domestically However domestic legislation simply gave effect to Directive and was not more generous

15. The Supreme Court Noted that German legal system very different for Werhof Noted that a different question asked in Werhof : question here is the converse Question to be referred: –whether art 3(1) of the Directive precludes national courts from giving a dynamic interpretation to reg 5 of TUPE in the circumstances of this case

16. Implications Likely outcome? How wide does it go? Due diligence require by transferor and transferee and union pressure for transparency required May 2011 TUPE review to cover this?

17. Damian Brown QC