Post Transfer Obligations in TUPE

The EAT have only just published their judgement in respect of a case heard and decided in January 2009; this case is now the 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) however 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 would not be good law.

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 than the European Law required.

The EAT however did give permission to appeal to the Court of Appeal and I am told that an appeal has been lodged. Watch this space!

For advice on TUPE related issues please contact me on gda@hrlegalpartners.com