The most important facts in brief:
- Employees can object to the transfer of the employment contract in the event of a transfer of business. contradict.
- The consequence of the objection is that the Employment contract still with the previous employer exists.
- In the event of an objection, there is often a dismissal for operational reasons.
What is the right to object to a transfer of business?
In the event of a transfer of business, employees have the option of to object to the transfer of the employment relationship. With a Transfer of business a business or part of a business is transferred to a purchaser. As a result of the transfer of the business, the employment relationships are also transferred to the acquirer. Employees can object to the transfer of these employment relationships in writing. The objection means that the employment relationship is not transferred to the acquirer, but continues to exist with the transferor.
When is there no right of objection?
There is no right of objection if the Employer no longer exists after the sale. If, for example, the previous employer no longer exists as part of a merger under transformation law or a demerger, there is no right of objection.
If an objection is made even though there is no right of objection, the objection has no legal effect. In particular, this means that a declared objection may not be reinterpreted as a resignation or an offer for a termination agreement.
What is the deadline for filing an objection?
The objection can within one month take place. The one-month period begins when the employee is duly informed by the employer or the acquirer. If the employer or the acquirer does not provide proper notification, the period does not begin to run. However, not all errors prevent the objection period from starting to run. A distinction is made between the following errors:
- DecisiveIf the notification contains errors that are relevant to the employee's decision, e.g. if relevant information is missing, the objection period does not start to run.
- Not relevant to the decisionErrors that have no significance for the decision of employees do not prevent the objection period from starting to run.
It is not possible to give a general answer as to which errors are significant for the decision of employees. It depends on the individual case. Accordingly, it makes sense for employers to proceed with particular care.
If the objection period does not begin to run, the right of objection may be forfeited. If forfeiture occurs, the right of objection expires. Forfeiture occurs if the following two conditions are met:
- Moment of timeThe moment of time is determined by the passage of time. It is necessary that a longer period of time has elapsed.
- Moment of circumstanceCircumstances are present if the employee behaves in such a way that the employer could assume that no further objection would be made.
The moment of time and the moment of circumstance are interdependent. This means that the more time has passed, the lower the requirements for the moment of circumstance and vice versa.
Until the forfeiture occurs, there is a considerable risk for the transferor. If, for example, the "new" employer is in financial difficulties, employees often declare an objection in order to "switch back" to the previous employer.
What are the consequences of an objection?
If the objection is declared, the Employment contract not transferred to the purchaser. Instead, the employment contract continues to exist with the seller. However, employees should bear in mind that the sale of the business often results in the employee's job being lost. For this reason, there is often a risk of dismissal for operational reasons in the event of an objection. In view of the fact that the entire business is often closed, no social selection is required, meaning that even long-serving employees can be dismissed if they object to the transfer.