Double Dutch

March 30th, 2020 by James Goudie KC

Case C- 344/18, ISS FACILITY SERVICES, in which the ECJ gave Judgment on 26 March 2020, concerned public buildings in Ghent, a public contract for cleaning services, and the transfer of that contract to multiple transferred. What happened to the rights and obligations arising from the contracts of employment with the transferor? Did they transfer only to the transferee for whom the worker will perform his or her principal tasks? “ No”, says the ECJ. Or will they transfer to each of the transferred, in proportion to the tasks performed by that worker?

The starting point is that, as the ECJ observes at para 24, the Acquired Rights Directive does not envisage a situation where a relevant transfer involves a number of transferees. The ECJ reiterates, at paras 25/26, that the Directive is intended to safeguards the rights of employees but not to improve their conditions, and with a “ fair balance “ being struck between the interests of employee and transferee.

The ECJ concludes, at para 27, that the fact that the economic entity to which a worker was attached has been transferred to one or more transferees has no effect on the transfer of the rights arising from an employment contract existing on the date of the transfer. Therefore the transfer is to each of the transferees, in proportion to the tasks performed by that worker.

This, however, is subject to important provisos : (1) the division of the contract must be “ possible” ; and (2) (a) it must not cause a worsening of working conditions (b) nor adversely affect the safeguarding of employee rights.

What happens in those eventualities? The ECJ says that the transferee(s) would be regarded as being responsible for “ the consequent termination of the employment relationship”.


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