Middlesex University Research Repository An open access repository of Middlesex University research http://eprints.mdx.ac.uk Sargeant, Malcolm ORCID: https://orcid.org/0000-0002-6366-853X (1997) A study of the implementation of the Acquired Rights Directive in the United Kingdom and other member states of the European Community. PhD thesis, Middlesex University. [Thesis] This version is available at: https://eprints.mdx.ac.uk/8026/ Copyright: Middlesex University Research Repository makes the University’s research available electronically. Copyright and moral rights to this work are retained by the author and/or other copyright owners unless otherwise stated. The work is supplied on the understanding that any use for commercial gain is strictly forbidden. A copy may be downloaded for personal, non-commercial, research or study without prior permission and without charge. 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See also repository copyright: re-use policy: http://eprints.mdx.ac.uk/policies.html#copy A study of the implementation of the Acquired Rights Directive in the United Kingdom and other Member States of the European Community A thesis submitted to Middlesex University in partial fulfilment of the requirements for the degree of Doctor of Philosophy Malcolm Sargeant School of Law Middlesex University April 1997 Table of Contents Item Page number Abstract i Statutes and Stàtutory Instruments iii EC Directives v List of Cases vi List of Tables xii List of Appendices . xiii Abbreviations xiv Chapter 1 Introduction 1 Hypothesis 1 Structure of the thesis 2 Methodology 4 Chapter 2 A considération of the attitude of governments of the United Kingdom towards industrial relations and consultation 9 Pre 1970 10 1970 to 1979 16 Post 1979 20 Conclusions 28 Chapter 3 A considération of the attitude of selected Member States of the European Union towards industriai relations and consultation 33 Belgium 34 Denmark 37 France 39 Germany . 42 Greece 45 Ireland 47 Italy 48 Netherlands 51 Portugal 53 Spain 55 The corporatist approach 58 European compàrisons 58 Conclusions 62 Chapter 4 An examination of the implementation of law by the European Community and its consequencesfor the Community's social policy and labour law 71 Supremacy of Community law 74 Subsidiarity .11 Direct effect 81 European Court of Justice 86 Council of Ministers 88 The Commission 89 The implementation of directives 91 Législatures 95 Judiciaries 97 Conclusions 105 Chapter 5 An examination of European Community social policy, the origins of the ARD and a considération of the approach of the Community towards the social partners 112 Community social policy 112 The social dialogue 123 European Works Council Directive 126 The Working Time Directive 128 UK Government attitude 134 Worker information and consultation 137 Conclusions 145 Chapter 6 The Implementation of the ARD in the United Kingdom and selected Member States of the European Union 153 The ARD 153 Implementation of the ARD in the United Kingdom 158 The common law and business transfers 160 The TUPE Régulations 162 The indaquacies of the TUPE Régulations 177 Implementation of the ARD in selected Member States 183 Conclusions 202 Chapter 7 Relevant cases before the European Court of Justice 207 Definition of a transfer of an ' undertaking 208 .Transfer of part of an undertaking 218 Employées protected by the Directive 221 Definition of employée 227 Ihsolvency 229 Contracting out of services 233 Conclusions 239 Chapter 8 A considération of issues arising from the implementation of the ARD in the United Kingdom and other Member States 243 Transfers of contracts of employment and the employment relationship 244 Employée choice in transfers 248 Part time, temporary and fixed-term contracts 250 Dismissals 251 Joint liability 257 Two year qualification 258 Transfer of part of an undertaking 260 Consultation 262 Economic, technical or . organisational reasons 266 Insolvency 269 Pensions 269 Compulsory competitive tendering 270 Litigation in other Member States 278 Conclusions 286 Chapter 9 . A considération of the proposais for a revised ARD 293 Purpose of Directive 294 Proposed Article 1 296 Proposed Articles 1(3) 308 Prposed Article 1(4) 309 Proposed Articles 1(5), 3(4), 4(3) 4(4) and 4(5) 311 Proposed Article 2 320 Proposed Article 3(1) 323 Proposed Article 3(3) 326 Proposed Article 5 328 Proposed Article 6 330 Final provisions 333 UK Government consultation 334 Discrétion 338 Conclusions 340 Chapter 10 A proposai for revised TUPE Régulations based upon an interprétation of the proposed ARD 346 Chapter 11 Conclusions 362 The inadequacies of the Directive 362 The inadequacies of the TUPE Régulations 364 Inadéquate enforcement 366 Différent approaches 366 Future approaches 373 Appendix A 377 Appendix B 384 Appendix C 386 Bibliography Officiai Publications 389 Articles 392 Books 395 i Abstract The Council Directive on the approximation of the laws of the Member States relating to the safeeuarding of employées' rights in the event of transfers of undertakings. businesses or parts of businesses was approved by the Council of Ministers on February 14 1977. It feil to be transposed into national law within two years. In 1979 the Labour Government in the United Kingdom was defeated and a new Conservative Government assumed office. In 1981 the Government transposed the Directive into UK law with great reluctance. Thus a flawed European Directive was transposed into inadequate Régulations by a reluctant Government. * The advent of the Conservative party to power resulted in a change in Government policy away from partnership with the représentatives of employées and employers to a policy of de-regulation and an attack on the strength of the trade unions. A séries of Employment Acts during the 1980s transformed industriai relations within the country. Within this changing environment the Acquired Rights Directive appeared as a paradox, as its intention was to increase protection available to employées in the event of a transfer. At the same time the European Court of Justice gradually defined and widened the scope of protection offered by the Directive. The changing nature of industriai relations in the United Kingdom has been in contrast to that of other Member States of the European Community which are studied here. These Member States are examined as a contrast to the UK approach. 11 Additionally the European Community has been developing its relationship with the représentatives of employées and employers. There has been a process of creating a social dialogue at Community level and the role of the social partners has been of increasing importance. À central thème of mis diesis is that it is this contrast between the approach of the Community and Member States, on the one hand, to the approach of the United Kingdom, on the other, that has contributed to the problems experienced with the Directive. It is likely that problems will also occur with the new Acquired Rights Directive unless there is a short terni change of approach by the United Kingdom. Ih the longer terni, it is argued, there needs to be an acceptance by the Community of r the diversity of the Member States so that any such conflicts can be avoided in the future. 111 UK Statutes and Statutory Instruments 1906 Trade Disputes Act 1959 Terms and Conditions of Employment Act 1971 Industrial Relations Act 1974 Trade Union and Labour Relations Act 1975 Employment Protection Act 1975 Sex Discrimination Act 1976 Race Relations Act 1976 Trade Union and Labour Relations (Amendment) Act 1977 The Safety Representatives and Safety Committees Regulations SI 1977/500 1978 Employment Protection (Consolidation) Act 1980. Local Government Planning and Land Act 1980 Employment Act 1981 Transfer of Undertakings (Protection of Employment) Regulations SI 1981/1794 1982 Employment Act 1984 Trade Union Act . 1987 Transfer of Undertakings (Protection of Employment) (Amendment) Regulations SI 1987/442 1988 Employment Act 1988 Local Government Act 1990 Employment Act 1990 National Health Service and Community Care Act 1992 European Communities Act iv 1992 Trade Union and Labour Relations (Consolidation) Act 1993 Trade Union Reform and Employment Rights Act 1994 Deregulation and Contracting Out Act 1995 The Employment Protection (Part time Employees) Regulations SI 1995/31 1995 The Collective Redundancies and Transfers of Undertakings (Protection of Employment) (Amendment) Regulations SI 1995/2587 1996 Employment Rights Act . 1996 Health and Safety (Consultation with Employees) Regulations SI 1996/1513 V EC Directives 1975 Council Directive 75/117 on the approximation