On a Tupe service provision transfer can an employee transfer over to several transferees?
Within UK employment law, the splitting of an employee’s employment contract following transfer of services across new multiple business providers (transferees) under Transfer of Undertaking Regulations (TUPE) does not appear to be supported by case law however things could now change in light of Court of Justice of the European Union (EJC) - ISS Facilities Services NV v Sonia Govaerts & Atalian NV.
In the above case, ISS Facilities Services (ISS) had three cleaning contracts for various buildings with City of Ghent with Ms Govaert (G) being the project manager for all three contracts with 85% of her work relating to buildings 1 and 3 and 15% relating to building 2.
There was a re-tender of the contract and work for buildings 1 and 3 awarded to one contractor, Atalian, and building 2 services were awarded to another contractor. On reliance on the Acquired Rights Directive (ARD), (G) to transfer to Atalian, as that was where most of her work had transferred to.
The Belgian courts decided a transfer of an undertaking had taken place but referred the matter to the European Court of Justice (ECJ) to rule on whether (G)s’ employment should be split between the new contractors or whether it should transfer only to Atalian.
The (EJC) confirmed that the ARD did apply to the case that with more than one transferees, the employee’s contract rights transferring to the respective transferees based upon the work performed by the employee but only if the split did not adversely affect employees’ working environment and conditions.
The rationale behind (EJC) finding was that (ARD) there to ensure, as far as possible, that the contract of employment or employment relationship continues unchanged with the transferee, in order to prevent the workers concerned from being disadvantaged solely as a result of the transfer.
However, one conciliation of the decision is that (EJC) held that this will be a matter for national courts/tribunals to decide and factors such as the amount of time a worker devotes to each undertaking would be a factor together with the economic value of the “lots” to which the employee is assigned.
In addition, the (EJC) held that if division of the contracts is impossible or if it leads to an adverse effect on the worker as described above, the incoming employer (the transferee(s) would be responsible for any resulting dismissal, even if this was initiated by the worker themselves.
Current UK case law suggests that with multiple transfers, employees should transfer to whichever business they are more closely linked which is determined by reference to the amount of work an employee receives from that part of the business but that is not the deciding factor.
Alternatively, under UK law, if there is a high degree of fragmentation it may be decided there is no qualifying transfer at all.
One must wait and see if this new (EJC) ruling is to be followed within the UK, but there will be practical issues as it may be difficult to “split” a contract of employment across different transferees in a way that will not be detrimental to the worker in question.
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