Albron Catering BV v FNV Bondgenoten C/242/09
This was a Dutch reference to the European Court of Justice concerning a dispute between Albron Catering FNV and Mr Roest in order to determine whether in the context of a group of companies, one of whose legal entities performs the function of a central employer and dispatched its employees amongst various companies which constitute that group, the transfer of the activities of one company in the said group to a company outside the group, namely Albron, must be regarded as falling within the rules for the protection of employees instituted by the Acquired Rights Directive.
The ECJ held that the Directive can cover employees who work for that company even if they are technically employed by another group company. The ECJ looked behind the formal corporate and contractual structure in order to protect employees’ rights when their employer changed, so they were automatically transferred.
In this case all employees of the Heineken group were employed by a Dutch company. 70 workers including Mr Roest actually worked in the catering department of another company which catered for Heineken staff on its various sites. These activities were outsourced to Albron. The ECJ decided that the Directive provided protection to such employees because it was possible to regard the “transferor” as being the group operating company to which the employees were assigned on a permanent basis irrespective of whether there was a contract of employment between the transferor and the employees concerned.
Key point: The wording of TUPE is slightly different to the Directive and TUPE does not recognise the concept of non-contractual employment on a transfer in the same way as in the Directive does. It is unlikely that UK employees could claim such protection, at least in the private sector.