Planning a merger, acquisition or division of (part of) a business in the Netherlands or any other EU country? Be aware of the EU law which sets out the strong position of employees in case of a transfer of undertaking (Directive 2001/23/EC). Russell Advocaten will inform you on this legislation and the consequences thereof by a series of newsletters. This time: Criteria for a transfer of undertaking.
In case of a transfer of undertaking all rights and duties arising from the employment contract(s) with the transferor existing at the time of the transfer will be transferred to the transferee by law (thus, without any further proceedings). Therefore, it is important to be aware of the criteria for a transfer of undertaking. A transfer of undertaking exists when an undertaking retains its identity by a transfer arising from a contract, merger or division. There is a significant amount of (European) case law on when a transfer should be considered a transfer of undertaking. This case law shows that it is not necessary for the transferor (the party that ceases to be the employer) and the transferee (the party that becomes the new employer) to have aimed at a transfer. Even a direct contractual relation between the transferor and the transferee is not required for the existence of a transfer of undertaking. The transfer of a single activity may also qualify as a transfer of undertaking (for instance, only a cleaning division of a company is being transferred).
To determine whether the undertaking has retained its identity several matters must be taken into account, including:
Would you like to receive more information about the EU law on transfer of undertaking and the consequences thereof? Or do you have any other questions on employment law? Please contact:
Jan Dop, LL.M. (jan.dop@russell.nl).
Employees have a right to privacy in their private lives. This also applies to sick employees. However, they must also comply with their reintegration obligations and provide accurate information about their illness. What options does the employer have to check whether they are actually doing this?
Employees who consume alcohol and drugs during work or who want to work under the influence remain a problem for employers. What measures can you take against this? Are you allowed to test an employee if you suspect they are under the influence?
An earn-out in the event of a company takeover offers opportunities and risks. The former director and major shareholder remains involved in the company and part of the purchase price remains dependent on future performance. What aspects are important here?
Many companies do not have a works council, even though they should. When is it mandatory to establish one? What are the advantages of a works council? What are the consequences if your company does not have a works council?
Discrimination in the recruitment and hiring of new staff is not permitted. When do you, as an employer, discriminate during the application process, even unintentionally? And how can you prevent this, also if you use AI?
The government wants to improve the legal position of flex workers with a new law. What will it mean for employers and flex workers if the legislative proposal is adopted? What new rules will you need to take into account?