2013-06-05
Can employees of the current service provider transfer to his successor?

In some circumstances change of the service provider will result in a transfer of employees of the previous service provider to his successor. This will happen when the new provider takes over essential elements of the property connected with maintenance of the service by his predecessor.

Assessment whether a transfer of an undertaking or part of it from one service provider to another took place will require comparing tasks of both service providers, as well as elements of property used in maintenance of such tasks. The assessment will be different for a business based on specific elements of property (such as workshops or machines), and for a business based mainly on human capital (such as cleaning or catering). In the second type of business, just the take over of tasks may result in a transfer of part of the business and employees, if - following the transfer - the identity of the taken over business has been maintained.  Such business unit can also comprise a team of employees who perform joint activity on permanent basis.

Transfer of an undertaking or part of it and transfer of the employees to the new employer is regulated by Article 23(1) of the Labour Code. However, this provision of law is very general and it does not explain what transfer of an undertaking or a part of it should mean.

Numerous doubts in this area are answered by decisions of the Supreme Court, in line with decisions of the European Court of Justice and its interpretations of the Directive 2001/23/EC of 21 March 2001 and the earlier Directive 77/187/EEC on safeguarding of employees rights in the event of transfers of undertakings, business or parts of undertakings or business.



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