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accept the termination of the employer as a constructive dismissal under paragraph 5, finds that he has thus "elected" a course which provides no remedy and has disenfranchised himself from any right of action in respect of such dismissal. I cannot think that such was the intention of
Parliament at the time of its amendment of the Regulations or that, in truth, it contemplated that it was doing other than preserve the common law right of the employee to a remedy in the circumstances set out. Nor do I consider that the ministerial observations to which we have been referred in Hansard lead to any other conclusion. In my view, they beg the question at issue, rather than answering it.
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Directive is the protection of the employee by enabling him, upon transfer, to enjoy the same terms and conditions of employment as formerly. Whilst the machinery for effecting such purpose is to provide in
Article 3.1 for a wholesale transfer of the transferor's rights and obligations to the transferee, it is no part of the Directive's intention to require that the employee's rights against the transferor arising from the relationship up to transfer should be extinguished. In this respect it is stated that Member States may provide that, after the date of transfer, the transferor should continue to be liable in respect of its obligations up to that date.
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constitute a ground for dismissal; if it were otherwise, the purpose of the
Directive would be self-defeating. However, by Article 4.2 it is made clear that, if the contract of employment was terminated because the transfer would involve a detrimental change in the employee's working conditions, the
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35. if Mr Goudie's primary case were accepted, it would produce a surprising and unwelcome trap for the unwary, whereby an employee who, like the claimant in this case, objects for substantial reasons to the transfer of his employment, formally records such objection in advance, and purports to
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28. In approaching the proper construction of the
Regulations, it seems to me essential to bear in mind the purpose and content of the Directive as elucidated in the decisions of the European Court. In that respect it is clear that, as earlier set out (see paragraph 8 above), the purpose of the
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Mr
Humphreys worked as an examiner for the Oxford Delegacy, and was to become a new Associated Examining Board employee. That would adversely affect his working conditions. He previously had tenure, and could only be sacked for wilful misconduct. He objected before the transfer (see
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Potter LJ held that to accept the
University's argument would make a nonsense of the Directive. Instead, the judge declared that Mr Humphreys' objection was effective to establish a valid claim of constructive dismissal against the University. The judge observed:
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responded that they were not
Humphreys' employers at the time of the transfer, because his claim of constructive dismissal effectively meant he had already resigned, and was thus no longer an "employee".
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rights of employees. It is authority for the proposition that, if an employee objects to a proposed change, he or she can be in a good position to claim
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regulation 4(7), but more crucially regulation 4(9) and art 4(2)), and then alleged
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29. Article 4.1 makes clear that transfer of an undertaking should not
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employer should be regarded as 'responsible' for the termination.
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330:Spijkers v Gebroeders Benedik Abattoir CV
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516:History of the University of Oxford
422:Oakland v Wellswood (Yorkshire) Ltd
298:Parkwood Leisure Ltd v Alemo-Herron
182:Transfers of Undertakings Directive
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406:SS for Trade and Industry v Slater
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268:University of Oxford v Humphreys
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457:References
409:IRLR 928 (
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391:art 5 and
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241:TUPER 2006
239:art 5 and
185:2001/23/EC
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77:, and the
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187:arts 3-4
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111:Judgment
51:Keywords
34:Citation
475:, 1999.
364:(2001)
351:C-13/95
349:(1997)
336:C-24/85
334:(1986)
301:(2013)
228:UKHL 37
214:UKHL 10
126:per se
89:Facts
69:is a
26:Court
438:and
434:see
411:EAT
396:r 8
319:r 3
288:r 5
244:r 4
200:r 7
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465:^
102:.
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167:e
160:t
153:v
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