Thursday 26 February 2009

TUPE: Post-transfer obligations

Despite the dull title, this is an important case. It is authority for the proposition that a transeree is bound by pay increases negotiated by the transferor with a union under a collective agreement after the TUPE transfer has taken place.

For years, a line of authorities held precisely that (the lead case being Whent v Cartledge). In 2006, the ECJ held in Werhof v Freeway that the Acquired Rights Directive did not bind transferees in respect of contractual amendments negotiated post-transfer between transferor and union under a collective agreement. Everyone thought Whent was dead in the water.

Yesterday, in Alemo-Herron v Parkwood Leisure, the EAT held that Whent v Cartledge remained good law, as the UK was entitled to interpret the Acquired Rights Directive in a way more favourable to employees that European Law required. (NB the oral judgment was given in January, but the transcript only appeared yesterday).

HHJ McMullen QC, recognising the difficulty of this point, gave permission to appeal to the Court of Appeal. I understand that an appeal has, indeed, been lodged.

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