This month recent case laws

Published on : 02/10/2020 02 October Oct 10 2020

Transfers of undertakings to more than one business 

A recent surprising decision from the European Court of Justice offers new insight into the transfers of undertakings and their impact on employees.

More specifically, we learn that if an employee works for a transferor on a full-time basis, he may end up being employed by two (or more) employers following the TUPE transfer on a part-time basis as long as this division of the employment contract is possible does not result in a worsening of working conditions nor adversely affects the employees’ rights under TUPE.

In the case at hand, a Belgian national worked as a project manager at a company hired for the cleaning and upkeep of various buildings of the city of Ghent. The employee’s work was spread over three separate lots. After a new public tender, the contracts for the cleaning activities of the three lots were not renewed with the company but granted to two different transferees (one business received one lot, and the other business received two lots).

The employer (the transferor) argued that the employment contract was automatically transferred to the transferee that was granted two lots, in accordance with Belgian implementation of the TUPE directive. The employee challenged this.
In this dispute, the Labour Court of Ghent asked the ECJ how the TUPE Directive applies in case of a transfer to different transferees.

Article 3 (1) of Council Directive 2001/23/EC of 12 March 2001 provides that the transferor’s rights and obligations arising from an employment contract or from an employment relationship existing on the date of a transfer are to be transferred to the transferee.

Article 4(1) of the same Directive provides that the transfer of the undertaking, business or part of the undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee.

The court ruled that the most reasonable solution would be to transfer the rights and obligations arising from an employment contract to each of the transferees “in proportion to the work carried out by the employee”.

It leaves it to the national court to determine the rules according to which such a division is to be carried out. It must take into account, for example, the economic value of the lots or the working time actually devoted to each lot by the employee.

Can an employer ban employees from wearing beards?

Since 2016, an employer may include in the company's written rules a neutrality clause prohibiting the visible wearing of any political, philosophical or religious signs in the workplace.

European and French case law has laid down conditions for the validity of such a clause: it must treat all the employees of the company in the same way, imposing on them, in a general and undifferentiated manner, neutrality in terms of clothing. And it must be applied only to employees who are in contact with customers.

In the absence of internal regulations the employer may not prohibit an employee from wearing a visible sign of religion, nor may he sanction such wearing.

On 8 July, the French Supreme Court was asked to answer the question of whether an employer may sanction an employee working as a consultant sent abroad to provide security services, on the basis of his beard. The employer claimed that the beard was cut in a manner that was significant both religiously and politically, creating a risk for the consultant and the client.

The Supreme Court’s decision says the following:

- Without a written neutrality clause, the ban on beards is an infringement of religious freedom;

- The employer's willingness to consider the client's wishes is a subjective consideration and therefore is insufficient: there must be a professional and determining requirement;

- In the absence of a neutrality clause, the objective of the safety of the company's staff and customers may justify a restriction on the rights of individuals. This allows the employer to impose a neutral appearance on employees when this is necessary to prevent an objective danger.

Therefore, if an employer is considering imposing neutrality within its structure, the company rules will have to be amended to include a neutrality clause. Failing this, it will be necessary to justify a breach of the safety of its staff and customers.

This is difficult, though:  in the case described above the employer was unsuccessful. 



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