TUPE

[Thanks to Dr John McMullen of Short Richardson & Forth LLP for providing this case summary]

The European Court has handed down its decision in Albron Catering which is authority for the proposition that the Acquired Rights Directive applies when the ownership of an undertaking is transferred by a group company, even where the employees affected are employed by another group company, provided they are assigned permanently to the undertaking being transferred.

In this case, all employees of the Heineken Group were employed by Heineken Nederlands Beheer BV. Seventy workers, including Mr Roest, however, actually worked in the catering department of Heinken Nederland BV, which catered for Heineken's staff in its various sites.

These catering activities were outsourced to Albron. The Dutch law states that an employee must be employed by the transferor for the rules on workers' acquired rights to apply (as is, interpreted literally, the case under TUPE in the UK).

Applying a purposive approach however the Court decided that the ARD provides protection to such employees because it is possible to regard the word "transferor" as being the group operating company to which the employees were assigned on a permanent basis irrespective of whether there is a contract of employment between the transferor and the employees concerned.