say that dismissal based on party membership is never justified, but that such dismissal should always be capable of being challenged, irrespective of the duration of employment.
Conclusion: violation (four votes to three). Article 41: No claim made in respect of damage.
POST-TUPE COLLECTIVE AGREEMENTS
20 February 2013
The Advocate General has ruled recently on the question as to whether it is contrary to the Acquired Rights Directive 2001 for transferee employers to be bound by collective negotiations after the date of transfer under TUPE? As reported in Daniel Barnett’s employment law bulletin it would appear that the answer is no, as long as the employer's fundamental right to run a business is not breached, according to the Opinion of the Advocate General in Alemo-Herron and others v Parkwood Leisure Ltd . The employees worked in a Council leisure department. Their contract of employment contained a 'dynamic clause'• incorporating existing and future collective agreements by the National Joint Council ('NJC') for Local Government Services. Their department transferred under TUPE to a private-sector employer first in 2002 and again in 2004 to Parkwood. After the TUPE transfer to Parkwood the NJC agreed pay increases. Parkwood refused to honour these agreements noting that it was not, and could not have been, privy to the NJC negotiations. The Supreme Court asked the CJEU whether dynamic clauses could in principle transfer under the Acquired Rights Directive. The Advocate General considered that it was up to individual member states to decide whether to allow dynamic clauses to transfer; the Directive did not prescribe either way. National courts, however, had to ensure that the transferee's freedom to conduct business was not breached by the dynamic clause being unconditional and irreversible. There was unlikely to be a breach in the case of the UK, where collective agreements have their legal basis in the individual employment contracts which can be renegotiated.
The opinion of the Advocate General is not binding on the CJEU, but is - as a matter of practice - usually followed.
Previous CIPP News
THE EAT CONSIDERS APPROPRIATENESS OF FINAL WARNINGS IN UNFAIR DISMISSAL CASE
25 February 2013
The EAT has considered the question as to whether an Employment Tribunal should look at the appropriateness of a preceding written warning when considering an unfair dismissal case.
Thank you to Daniel Barnett’s employment law bulletin for reporting on the case of Simmonds V Milford Club
When, in an unfair dismissal case, should an employment tribunal concern itself with the appropriateness of a final warning preceding the dismissal?
When there are grounds for thinking that the final warning may have been manifestly inappropriate, says the EAT in Simmonds v Milford Club .
CIPP Policy News Journal
12/04/2013, Page 79 of 362
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