Keywords
Summary

Keywords

1 Social policy - Approximation of laws - Transfers of undertakings - Safeguarding of workers' rights - Directive 77/187 - Scope - Transfer of an undertaking being wound up by the court and continuing to trade - Included

(Council Directive 77/187, Art. 1(1))

2 Social policy - Approximation of laws - Transfers of undertakings - Safeguarding of workers' rights - Directive 77/187 - Employees dismissed shortly before the transfer and not taken on by the transferee - Ability to claim as against the transferee that the dismissal was unlawful - Permissible

(Council Directive 77/187, Art. 4(1))

Summary

3 On a proper construction of Article 1(1) of Directive 77/187 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 businesses, the directive applies in the event of the transfer of an undertaking which is being wound up by the court if the undertaking continues to trade during that procedure.

4 On a proper construction of Article 4(1) of Directive 77/187, which is designed to protect the rights of employees vis-à-vis the transferor as well as vis-à-vis the transferee against a dismissal whose sole justification is the transfer, both the transferor and the transferee are entitled to dismiss employees for economic, technical or organisational reasons.

Employees unlawfully dismissed by the transferor shortly before the undertaking is transferred and not taken on by the transferee may claim, as against the transferee, that their dismissal was unlawful, since their contracts of employment must be regarded as still extant as against the transferee. First, employees dismissed by the transferor before the undertaking is transferred, contrary to Article 4(1) of the directive, must be regarded as still employed by the undertaking on the date of the transfer and, secondly, the rules of the directive, in particular those concerning the protection of workers against dismissal by reason of the transfer, must be considered to be mandatory, so that it is not possible to derogate from them in a manner unfavourable to employees.