Recently, the Court of Den Bosch (ECLI:NL:GHSHE:2014:588, Benetra B.V./ employee) issued an interesting ruling regarding a business acquisition between transport company Benetra and transport company Wiba. The majority of activities, the customer base, and personnel were taken over by Wiba. However, the trucks – important tangible assets – were not.
Unlike the cantonal judge, the Court ruled that, despite the fact that the trucks were not taken over, there was still a transfer of business. As a result, the employee who was unfit for work and excluded from the takeover was (by operation of law) deemed to have also been transferred, and the acquirer was required to continue paying the employee’s salary during illness after 2 years (wage sanction).
Based on European case law (Liikenne, CJEU 25 January 2001), it is of (essential) importance that the trucks – significant tangible assets – were not transferred, and this could have led the Court to a different judgment. However, I suspect that the Court considered it an unacceptable situation that the parties, by not transferring the trucks, could influence the applicability or non-applicability of article 7:662 BW and beyond (the mandatory protection of the employee in the event of a transfer of undertaking). With the (unacceptable) consequence that the employee who was unable to work and 2 drivers had to remain employed by Benetra, while the activities were transferred to Wiba.
The judgment is also interesting because it shows that the employee who is incapacitated for work, with reintegration possibilities, in principle remains part of the activity being transferred, and therefore transfers by operation of law. This provides more clarity for a question that frequently arises in practice: does a long-term incapacitated employee transfer as well? After the Supreme Court ruling regarding Memedovic (February 11, 2005), in which Memedovic, who had been suspended, was no longer considered to be part of the activity being transferred, this was no longer certain.
That the employee initially assumed that they had not been transferred and had also been externally reintegrated (second track reintegration) does not affect their rights in the case of a transfer of enterprise. It is only different if there is a clear and unequivocal declaration by the employee not to want to transfer.
