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    The Employment Appeal Tribunal (EAT) has ruled that the provision under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) which renders changes to employees’ terms and conditions void if they are made because of the transfer applies to changes that are advantageous as well as detrimental to employees. On the facts of the case, this meant that owner-directors who had made significant improvements to their own employment terms before a TUPE transfer could not enforce these against the transferee employer.


Lisa Dafydd
Lisa Dafydd is an associate at Lewis Silkin LLP.

    Following the ECJ’s decision in Somoza Hermo – v – Ilunion Seguridad, C-60/17 (Somoza Hermo) of 11 July 2018, all eyes were on the Spanish Supreme Court. Since 2016, the Court has ruled a number of times that limitations to the liability of the new contractor established in a collective bargaining agreement (‘CBA’) in the context of a CBA-led transfer were valid (see e.g. EELC 2018/21). Somoza Hermo established that a CBA-led transfer that entails a non-asset-based transfer is a transfer within the meaning of the Acquired Rights Directive. Now the Supreme Court (in a decision dated 27 September 2018 taken with one dissenting opinion) is clear that its doctrine must be reviewed and has therefore held that limitations on pre-transfer liability for a new contractor under a CBA-led transfer that trigger a non-asset-based transfer, are not valid.


Luis Aguilar
Luis Aguilar is an attorney-at-law at Eversheds Sutherland in Madrid, Spain and associate professor of Employment Law at IE University in Madrid, Spain.

    The Spanish Supreme Court has again ruled on the highly controversial question of whether limitations to the liability of a transferee established in a collective bargaining agreement (‘CBA’) in the context of a CBA-led transfer are valid, or whether they contravene the Spanish implementation of the Acquired Rights Directive.


Luis Aguilar
Luis Aguilar is an attorney-at-law at Eversheds Sutherland and an associate professor in Labour Law at IE University.
Case Reports

2017/9 The influence of the threat of terrorism on the right to strike (NL)

Tijdschrift European Employment Law Cases, Aflevering 1 2017
Trefwoorden Industrial action, Strike
Auteurs Ruben Houweling en Amber Zwanenburg
SamenvattingAuteursinformatie

    The Dutch Cantonal judge prohibited a strike because the safety of passengers could not be guaranteed. At the hearing, which took place a few days after the Berlin Christmas market attacks, weight was given to the threat of terrorism. Nor is this the first time the threat of terrorism has been explicitly referred to by a Dutch court in a case concerning the right to strike.


Ruben Houweling
Ruben Houweling and Amber Zwanenburg are respectively a professor and a lecturer of Labour Law at the Erasmus University Rotterdam.

Amber Zwanenburg

    In one of the first high-profile cases under the Protected Disclosures Act 2014 (i.e. whistleblowing legislation), two employees have successfully secured an injunction in the Circuit Court which prevents their dismissal.


Lucy O’Neill
Lucy O’Neill is an associate at Mason Hayes & Curan, www.MHC.ie.

    The Employment Appeal Tribunal (‘EAT’) has upheld an Employment Tribunal’s (‘ET’s’) finding that Article 8 of the European Convention on Human Rights (‘ECHR’) was not engaged when an employer used private material obtained by the police during a criminal investigation as part of an internal disciplinary investigation into one of its employees. This material had been taken from the claimant’s phone by the police, who then provided it to the employer (stating that it could be used for the purposes of their investigation). The facts in this case were unusual. Whether or not an employee has a reasonable expectation of privacy in similar circumstances will depend on all the facts, including the source of the information, whether the employee has expressly objected to its use, and whether the relevant conduct took place in, or was brought into, the workplace.


Anna Bond
Anna Bond is an associate at Lewis Silkin LLP: www.lewissilkin.com.
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