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TUPE across The information you need for each

Issues UK Sec. 3 ff. Employment Law Transfert d’entreprise – Sec. 338-340 . Transfer of Undertakings ‘Transfert d’entreprise’ ( §613a BGB (Betriebsübergang). §613a BGB (Betriebsübergang). Transfer of Undertakings. The UK TRASFERIMENTO D’AZIENDA. Book 7, part 10, chapter 8, Transfer PRZEJSCIE ZAKLADU PRACY. SUCESIÓN DE EMPRESA. Övergång av verksamhet. “Betriebsübergang” - Art. 333 and Transfer of Undertakings (Protection Transfer of Harmonisation Act, 77/187/EWG, overdracht van onderneming. (Employees legal position) Act L.1224-1 of the new French MUNKALTATÓI JOGUTÓDLÁS. acronym ‘TUPE’ is also used. of Undertaking (“Overgang van 333a Swiss Code of Obligations of Employment) Regulations 2006 RL 98/50/EG. no. 441 of 7 2001 Labour Code). Onderneming”) (CO). (“TUPE”). business [virksomhedsoverdragelse]. Definition: a transfer of a A transfer of a social or economic A transfer of an economic entity A transfer of a company or a part Definition: a transfer of an A transfer of an economic entity Definition: when an independent A transfer of an economic A transfer of assets (employees, A transfer of a company or a part Definition: a transfer of an Definition: a transfer of an In conjunction with the transfer Definition: If the employer transfers A transfer of a business, Definition: a company, undertaking or part of entity that retains its . that retains its identity as an thereof. The acquirer assumes the autonomous economic entity that retains its identity. unit (such as a strategic business entity that retains its identity. business etc) from one company thereof. The acquirer assumes the employing establishment or economic entity which maintains of an undertaking, a business or the enterprise or a part thereof undertaking or part thereof transfer of assets a business from one employer to organised group of resources and rights and obligations pursuant to that retains its identity and whose unit, plant, shop, division, to another where the object of rights and obligations pursuant to a part of it (including transfer its identity, and is understood as part of a business from one to a third party, the employment where there is a transfer of an another proprietor. In every case has the purpose of carrying out the contracts of employment that activity is either continued or workplace, or any section of these) the transfer is the company or the the contracts of employment that of assets and/or activities a group of organised means/ employer to another, the rights relationship is transferred to the economic entity that retains (employees, of transfer of a business or part of economic activity. existed at the time of transfer taken . or the material and non-material business not the shares of stocks. existed at the time of transfer. composing a business unit in resources that carry out an and obligations pursuant to acquiring party including all rights its identity, or, a company a business, the employment assets of the employer are The discrete economic entity must which employees are employed) economic activity either essential contracts of employment and the and obligations as of the date engaging a contractor to do business, etc) relationships are automatically transferred by agreement to an retain its identity following the to another employer that results in or incidental. employment relationships that of transfer, unless the employee work on its behalf, reassigning from a company transferred to the new employer. organisation or person transfer. the latter becoming a party to existed at the time of the transfer declines the transfer. such a contract or bringing the All individual rights and within the scope of the Labour the existing employment shall, with a few exceptions, work ‘in-house’. However the to another. obligations are maintained. Code for further operation or for relationships by virtue of law. also be transferred to the new supply of goods and one-off restarting operations if such employer. buying-in of services are The object of the transfer takes place within the excluded. framework of sale, exchange, lease, transfer is leasehold or capital contribution for the company or a business association. the business, not the shares or stocks No. No. No. No. No. No. No. No. Yes, if the transfer involves No. No. No. No. No. No. Minimum number than 15 employees. of employees required in company. If so how many? according to Sect. I/C at the of the works Yes. Employee representatives Yes. With employee Yes, I/C with the works council of I/C only if there is a works council Yes. Yes. Yes, if the transfer involves more Yes, with works council or the I/C in parallel with the works Yes, with employees Yes. Yes. The employees’ representative Yes. Mandatory 108 para. 2a Labour Relations Act council, or if none, at the level of ( or works council). representatives, if none directly the transferor and transferee. and the transfer constitutes a than 15 employees. employees representative board. If council and either trade union representatives. If none, the body or, if there is none, the information and and employees according to the union delegation, or if none, If none, directly with all affected with employees. ‘change in establishment’; in none, directly with employees. organisations at the employees should appoint employees directly. Sect 3a Employment Law at the level of the for employees. all cases (irrespective of works establishment level or individual representatives for the I/C consultation Harmonisation Act if there Prevention and Protection at work. council) written information to employees, when there are process. is no works council. be provided to each affected no trade unions at the requirements? employee. establishment level. Prior to the transfer. Before the transfer is made public No specific timing, usually at As early as possible, so the No specific timing but I/C before As early as possible, in any event 15 days before legal succession, ‘In good time’, but not less than Yes. Within ‘reasonable time’ for the At least 30 days in advance to the Yes, information should be served Before the decision is made In due time prior to the transfer. No specific timeframe but must and executed, usually before the least 30 days before the transfer. employees have time to evaluate any decision is made. before the transfer is made public inform employee representatives 30 days prior to the closing date, works council/staff association to intended transfer I/C with trade with sufficient notice, before regarding the transfer. take place long enough before ‘closing’ of the deal. how the transfer will affect them. and executed; written information (WC, union, other ). unless this is ‘not reasonably give advice, before the actual union or individual employees the execution of the transfer. the transfer to enable Timeframe I/C? In any event before the transfer to employees ideally at least one practicable’. decision has been made. and no precise time scale for Consultation must be done in consultations to take place. is executed. month before transfer. parallel I/C of the work council. sufficient time, before measures are effective. No, unless the transfer can be No, unless the transfer can be No, unless such transfer has an Yes. Yes, if there is impact on No, unless there is an economic Yes, if there is impact on If the company that employs the Yes. Yes, if holding and legal entity in No, unless the transfer impacts No, only if this will imply the No, unless such transfer concerns No, unless there is an impact on No. Is local I/C considered as an ‘event that considered as an ‘event that impact on the employees in the employees in France. committee (in companies with employees or the employer’s employees changes, consultation the NLs can be identified, jointly essential changes in the application of labour measures to a Swedish company. employees in Switzerland. required in the might have important might have important . more than 100 employees) and economic situation. will be required. undertake or decision of the organisation of work or legal the employees in Spain. consequences for the company’. consequences for the company’. the transfer can be considered as holding company can be grounds for employment. event of a In that case the works council an ‘event or plan which could attributed to the entity in the NLs. needs to be informed (not materially affect the employees’ transfer at group consulted). interests’ in which case or holding level information only. outside your country? No. No. No. No. No, unless transfer of part of No. No. Not under TUPE regulations. Yes, if the transfer involves more Yes, trade union and Social No. Yes, if the transfer implies a No. Only information/ No, unless the transfer involves Yes, statutory obligation to provide Information to a business and protected be required under other than 15 employees. Internal and Economic Council. collective modification of the job consultation if a CBA applies or a collective redundancy (then employee liability information to third parties. employees are transferred legislation if redundancies are external unions. conditions or geographical there are affected trade unions. notification of the Labour Office transferee at the latest 14 days (eg works council members, made. mobility. required). prior to transfer. If so, which personnel delegates): their transfer has to be authorised by the Labour (external unions, Inspector (their dismissal as well). government, etc)? No. No, except as far as the protected No. No. No agreement required from No. No. No. No. No. No. No. No. No. No. Do the employees who have been either of them. The works council employees or candidates to the social elections needs to give an opinion on the for the set up of the works project. representatives council and/or the committee for prevention and protection at work need to agree are concerned. with the transfer? Employees may object to their The employee has the right to No, but the employee can No, unless the ground for No, the transfer of the The employees can object and if No. In line with recent case law, an Yes, the employee can object. No. If employees object their A transferred employee can If measures are proposed which The employee has the right to Yes, in such case the employment Yes, employment ends on transfer if the new employer object. Doing so is seen as a terminate with two months’ objection is breach of employment contracts is by they do, they remain employees employee who refuses to transfer In this case, the employee has to employment ends by operation object and terminate the can be considered substantial object. In doing so the employee relationship is considered to be transfer date. refuses to accept special protection termination by the employee. notice. expectations. operation of law. If the employees of the transferor. is generally considered to have resign with notice. of law. employment contract upon modification of duties or labour will face the risk of receiving notice terminated upon the expiry of the from a Collective Bargaining refuse to work for the transferee, resigned. seven days prior notification mobility the employee can object of termination due to redundancy. statutory notice period, at the Agreement and the employee that could justify a dismissal by (termination has the same effect and terminate his employment earliest at the time of the transfer therefore loses special protection the transferee for gross as with notice by the employer). contract with a right to of business. Can the against termination, or if the misconduct. compensation. new employer refuses to accept employees individual entitlements. object? If so, If the transfer causes a change in the applicable Collective Bargaining what is the Agreement or plant agreement and this causes significant deterioration consequence of the working conditions, the employees are entitled to terminate employment with the new employer with the same consequences as if the employer had terminated the employment relationship. Yes, as far as individual pension No. No, except with employee No, except with employee An agreed change is possible (if Not if the change is because of No. No, except by individual employee’s No. No, except where change is for a The new employer may not Yes, with limitations and No. No. Only by termination of Only in very limited situations. entitlements and special consent. consent. If substantial changes change is substantial) unless the the transfer; agreed change consent. reason other than the transfer in terminate employment because consultation required in any case. the employment contract and No time frame. Can the new protection against termination are notified and the employees change is because of the transfer. possible but in some cases which case it is possible to agree of the transfer. For one year after simultaneous offer of a revised in a Collective Bargaining do not want to continue their Minimum one month. (originally collective terms) not on change and, under certain the transfer, the new employer is contract can the pre-existing employer change Agreement are concerned if the employment relationships on the within the first year following the circumstances, change obliged to apply the provisions of terms and conditions can be the terms and seller of the business continues changed conditions as offered, transfer if to the employees’ unilaterally. No mandatory the collective labour agreement changed. A revised contract can to exist; in all other cases the employees are entitled to detriment. time frame. which is binding on the previous be agreed upon termination of conditions of the deteriorations may be agreed by consider the notification as a employer at the date of the the earlier contract, for example, individual contract within the first dismissal by the employer and transfer. After the elapse of this by compromise agreement employment year after the transfer. cease their work at the end of the period and at any time when no with immediate effect or upon contract? If so, period of notice. collective agreement is in place, exhaustion of the ordinary notice the new employer can change period. in what time the conditions of the employment for a good reason, frame? with observance of the notice period. The contract may be terminated The contract can be terminated Only for general statutory reasons Gross misconduct or economic, For the transferor, no possible The contract can be terminated The transfer itself cannot be Economic, technical or The contract can be terminated Economic, technical or Employment contract can be Gross misconduct, and The contract can be terminated General provisions for termination Economic, technical or Reasons for for gross misconduct, for for gross misconduct, for not connected with the transfer. technical or organisational reason redundancies prior to the for gross misconduct or for one the reason for termination. The organisational reasons, and any for gross misconduct, justified organisational reasons not terminated without notice for objective causes (economical, for gross misconduct, for apply (for an ordinary termination organisational reasons entailing which the economic or organisational economic or organisational entailing changes in the work transfer. Whether for the of the fair reasons under the employer may only terminate reasons which were available to the grounds regarding the employer directly connected to the transfer. gross misconduct or in case of organisational, productive or circumstances related to the there are no reasons necessary). changes in the workforce. reasons. reasons. force. The employer bears the transferor or the transferee, a Protection Against Dismissal Act the employment contract for the previous employer. (economic, technical or extensive absence, or with notice technical) which will help to employee personally and for termination of burden of proof. reason unrelated to the transfer, (reason in the person, conduct normal reasons in connection with organisational reasons). for other length of time and true position the company in a more economic and organisational as long as it is based on genuine or business) but not because of performance etc. and justified reasons except competitive place in the market. reasons. the employment and serious grounds. the transfer. transfer of establishment. can be justified? No. No. No. No. Yes if the works council refuses to Prevented: no. Delayed: some No. Theoretically prevented or Yes. Yes, it can both be prevented and No. Yes. No, however a delay may occur Yes, registration in the Commercial No. If the procedure give an opinion on the transfer: might grant delayed. delayed if works council gives as a consequence of negotiations Register may be denied by court is not followed this could postpone the injunctions to delay if serious negative advice and starts with the unions. injunction in cases of merger/ implementation of the project. breach of works council rights, litigation. demerger/transfer of assets and can the transfer but unlikely. liabilities according to the Swiss Merger Law. be prevented In other cases it is uncertain whether or delayed? court injunctions would be available. A termination of contract due to Employees can claim damages for Employee can appeal against Yes. Yes. Failure to I/C the works council Employees can challenge the Yes, limited damages under the No. No. Employee can appeal against Yes, economic sanction up to Yes, in relation to the affected The employees can claim Yes, protective awards for failing to If the procedure the transfer is null and void, abusive dismissal related to unfair dismissal and claim full where an obligation exists can transfer and the Labour Supervisor regulations are available for failure unfair dismissal. €3,000. unions. compensation for damages if they inform and consult up to 13 weeks’ is not followed however, employees may transfer. salary compensation and lead to employees being able can impose a fine but damages are to inform and consult. are able to prove damage and pay per affected employee. demand a declaratory judgement continuing employment. to claim damages and not available. causality. can the company or alternatively accept the compensation; failure to give Failure to follow procedure does termination and demand all written information to employees not justify indemnity for unfair be punished payments they are entitled to due may lead to damages claims. dismissal with damages? to the unjustified termination. Criminal sanctions. Fine for failure to inform and Yes, the company may be fined. Failure to inform and consult with No. Yes, breach of I/C obligation: fine A TUPE situation could give rise Failure to inform and consult the No. Petit offence or criminal sanctions Compensation of damages to No. No. Protective award. consult. the works council is a criminal of up to HUF 100,000. to other legislative sanctions, or TU if the transfer involves more (fine). the employees, which should be offence. For the head of the HR difficulties. than 15 employees is deemed as proved by the specific employee. company: fine up to €3,750 anti-union behaviour. and/or a prison sentence of up Other sanctions? to one year for a first offence (€7,500 and/or two years’ prison sentence in case of a repeated offence). For the company: fine up to €18,750.

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