The Bottom Line
- Prove the Connection: Losing a major contract or concession does not give a company free rein to transfer staff to the new provider. You must be able to prove concretely that an employee had at least some involvement with the specific business being transferred.
- Documentation is Critical: Courts will not take your word for it. Be prepared to present clear evidence, such as revenue calculations, organizational charts, and job descriptions, to justify which employees are selected for transfer, especially those in indirect or corporate-level roles.
- Burden of Proof is on You: The outgoing employer bears the burden of proving a transfer is lawful. A failure to provide evidence, especially when an employee challenges the move, will likely result in the court ordering reinstatement, back pay, and penalty payments.
The Details
This case involved Transdev, a major public transport operator that lost a regional transport concession (a government contract to operate a service) to a competitor, Arriva. Under a specific Dutch law governing public transport (WPV 2000), employees associated with a lost concession automatically transfer to the new operator. Transdev placed an IT employee on the “transfer list,” classifying him as an “indirect” staff member whose role was linked to the lost business. The employee disagreed, arguing he had no connection to that concession, and took the matter to court in summary proceedings.
The court’s decision hinged on a simple but critical test: did the employee have any real involvement with the lost concession? Transdev argued that the employee, part of the national IT department, worked on systems that were also used by the transferred business unit. However, they failed to provide any concrete evidence to support this claim. In contrast, the employee presented documents indicating his work was exclusively for Transdev’s separate “Taxi Services” division. The court ruled that without clear proof of at least some connection to the transferred business, an employee cannot be lawfully included in an automatic transfer.
Furthermore, the court identified significant procedural flaws in Transdev’s approach. The law requires that the number of indirect staff transferred is proportional to the revenue lost from the concession. While Transdev claimed its calculations were correct and verified by an accountant, it failed to submit these crucial documents to the court. It also could not demonstrate that it had correctly applied the legal principles for selecting employees, which are similar to redundancy rules. This complete lack of supporting evidence made it impossible for the court to validate the transfer, leading it to suspend the employee’s move and order Transdev to reinstate him in his original role.
Source
Rechtbank Midden-Nederland
