Solicitors from one of Manchesterís top law firms have had a long running case, creating national interest in the legal profession, referred to the European Court of Justice (ECJ).
Mace & Jones is representing Celtec Limited, the former North Wales TEC (Training and Enterprise Council), in an employment case, spanning 5 years. The functions of Celtec have been taken over by ELWa.
Mace & Jonesí first ECJ case concerns the timing of TUPE (Transfer of Undertakings - Protection of Employment) regulations and arose out of the establishment of Training and Enterprise Councils (TECs).
TECs were private companies, which took on responsibility for the management of the delivery of much of the training and enterprise activity of the Department of Employment (ED) in 1990.
To assist TECS to start up, the ED arranged for civil servants to be seconded to the companies, initially for up to three years. This change in arrangements included a transfer of an undertaking.
A number of civil servants from North Wales were seconded out for a 3-year period in 1990 by the Department of Employment to work for the newly created North Wales TEC.
In 1991, the ED announced that within five years TECs should be the employers of all their staff and implemented a phased ending of the secondments. As civil servants all seconded staff had a right of return to the ED, or the wider civil service, or could opt to resign and enter into contracts of employment with the TEC.
Some of the civil servants working in the TEC decided to resign from their posts between 1993 and 1996 and began officially working for the TECs.
But when a redundancy situation arose with Mr Astley, one of the civil servants in (1998), a question arose as to when the transfer took place between the ED and TECs, as this calculated his redundancy payment.
Mr Astley sought to establish that his continuous employment began when he joined the civil service in (1993) and that TUPE transfer took place over the EDís five-year implementation process, granting him a larger redundancy entitlement.
But Mace & Jones argued that the TUPE transfer had taken place in 1990 and that any continuous employment was broken by Mr Astleyís resignation from the Civil Service.
Having been to the Employment Tribunal, the Employment Appeals Tribunal and the Court of Appeal, the complex case has now been referred to the House of Lords, which has referred the matter for a preliminary ruling to the ECJ to clarify the EC Acquired Rights Directive (No 77/187), which confirms when a TUPE can take place.
Philip Farrelly, partner and head of commercial litigation, commented: ìThe House of Lords acknowledged that the answer to when the transfer took place rests on the proper meaning of the expression date of transfer in Article 3(1) of the Directive and that there is no UK authority relating to a TUPE transfer which takes place over such a long period of time. This is a very complex case which is likely to continue until 2005.î
Mace & Jones in European debut
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