In this case, a public sector to private sector transfer (the contracting out of Lewisham Council's leisure services), it was argued that the dynamic interpretation was permissible under British law even if not permitted under European law, under the principle that a Member State may, it its domestic law, grant rights more favourable than contained in European law.
The European Court disagreed.
This was because a dynamic clause referring to collective agreements undermines the balance between the interests of the transferee in its capacity as employer, on the one hand, and those of the employees, on the other. Under Article 16 of the Charter of Fundamental Rights of the European Union, an employer must have the right to conduct a business and assert its interests effectively in a contractual process to which it is party. This allows it to negotiate the process of determining changes in the working conditions of its employees with a view to its future economic activity. A dynamic interpretation was therefore inconsistent with the Charter. As such, Member States are not permitted to allow dynamic clauses referring to collective agreements negotiated and adopted after the date of transfer where the transferee does not have the opportunity of participating in the negotiating process by which such a collective agreement was concluded.
SETTLEMENT DOES NOT REQUIRE FORMAL CONTRACT
30 July 2013
Is an exchange of letters, without a detailed agreement, sufficient to settle a claim? It was in Newbury v Sun Microsystems , concluded the High Court.
Daniel Barnett reports:
Sun's solicitors wrote to Mr Newbury, offering to compromise his claim for £601,464.98, paid within 14 days. Mr Newbury's solicitors replied, accepting these terms, but that they would 'forward a draft agreement for your approval'.
The parties attempts to agree that draft floundered.
Mr Newbury then argued that a binding agreement had already been reached.
Analysing the wording of the letters, Mr Justice Lewis agreed. The offer was detailed enough to be capable of acceptance and it had been accepted.
This case highlights the importance of clarity in the closing phase of negotiation. Parties wishing to agree a figure, but negotiate on other matters, must be careful. As Mr Justice Lewis commented, the phrase 'Subject to contract' may be significant.
DEATH IN SERVICE BENEFIT PAYABLE EVEN THOUGH EMPLOYEE DISMISSED
8 August 2013
In this case Fox v British Airways Plc , a former employee died within days of being dismissed. He had been entitled to the right to death-in-service benefit whilst in employment.
The Employment Tribunal, rejecting an argument that the loss was real loss of substance to the deceased, and considering it was in reality a benefit to the dependents, held that a sum of around £350 akin to the conventional award for loss of statutory rights should be awarded. The deceased’s father appealed against the assessment of quantum.
CIPP Policy News Journal
16/04/2014, Page 108 of 519
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