Refreshing the parts other beers cannot reach

12 Dec 2011

Re: Albron v Bondgenoten

Heineken International produces beer in the Netherlands.  It is part of a group of companies.  All employees were employed by one group company and assigned to work in other group companies. 

An employee ("R") was working for the catering department of Heineken Nederland, which was contracted out to Albron.  R began working for Albron and brought a claim on the basis that the EC Business Transfer Directive (on which TUPE is based) applied. 

In essence, R's case was even though he was not employed by Heineken Nederland, because he was permanently assigned to that company, Heineken Nederland should be regarded as a Transferor Employer so that when it transferred part of its business to a third party (Albron), his contractual rights were protected. 

The ECJ held that the Directive is intended to protect employees when there is a change of employer and that "that concept may…designate the non-contractual employer, responsible for running of the business transferred".  In other words, even though Heineken Nederland did not employ R when it transferred the part of its business in which R was employed to Albron, the Directive operated to protect all R's terms of employment.

This judgment is plainly in accordance with what the Directive is all about, namely protecting employees when there are business transfers.  However, as TUPE provides that the employee must be "employed by the Transferor" it remains to be seen how the judgment will be applied in the UK.