Transfer date

Case 2: The facts

A number of civil servants were seconded to a new training and enterprise council (TEC) and later transferred to it, resigning from the civil service. They argued that their years in the civil service should be taken into account in determining their employment rights, but the TEC said that they were already TEC employees rather than civil servants when the business transferred.

The workers' claim depended on whether there is a point in time when a transfer is deemed to have been completed - and, if so, how this point is identified. The House of Lords asked the European Court of Justice (ECJ) to decide on this point; following an opinion given by its top legal advisor, the Advocate General (see Workplace Report, April 2005), it has now done so.

The ruling

The ECJ held that the date of a transfer is when the responsibility for carrying on the business moves from transferor to transferee. That date cannot be postponed to another date at the will of either party. The transfer takes place on that date, regardless of what has been agreed between the parties.

Celtec v Astley [2005] C-478/03 (reported in IRLR 647)