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Several business transfers – can employees get back to a former employer by ways of objection?

 When there is a transfer of business (Betriebsübergang), the employment relationships of the affected employees transfer by law from the previous employer to the purchaser. The employees can object to the transfer of their employment relationships either vis-a-vis the previous employer or the new business owner during a one month period upon receiving sufficient information of such transfer. This period will, however, not start to run if the information provided was not sufficient. But what happens if there is not only one but two transfers of businesses?

 

In the case at hand, the business transferred from the Defendant to B. The information regarding the transfer from the Defendant to B had not been sufficient. Later on, the business was further transferred from B to C. C became insolvent. The Plaintiff objected to the first transfer of his employment relationship from the Defendant to B vis-à-vis the Defendant. He did not object to the transfer from B to C.

 

The German Federal Labour Court (Bundesarbeitsgericht, BAG, docket number 8 AZR 369/13) ruled that the Plaintiff’s objection was not valid as it had not been declared vis-à-vis the “previous” employer. The Defendant would have lost this status to B at the time of the first business transfer. Employees can only affect their present employment relationship, i.e. the employment relationship until the time of the business transfer. They can therefore not object to business transfers vis-à-vis former employers. However, the Plaintiff might have had more luck if he had objected to the second business transfer and following that to the first business transfer – provided that he could still validly declare such objections.