Competitive Tendering, Out-sourcing and the Acquired Rights Directive
In March 1997 the European Court of Justice reached a decision which necessitates a reappraisal of the application of the Acquired Rights Directive' to competitive tendering and out-sourcing. Up until that time, largely as a result of the decisions of the European Court in Spijkers, Daddy's Dance Hall, Rask and Schmidt,2 one started from the presumption that any transfer of services was likely to be caught by the Directive, and so was subject to our national Transfer of Undertakings (Protection of Employment) Regulations (TUPE).3 However, in Siizen v Zehnacker Gebaudereinigung GmbH and Lefarth GmbH4 the ECJ held that the mere loss of a service contract to a competitor cannot by itself indicate the existence of a transfer within the meaning of the Directive. The transfer of a service contract is not a transfer of a part of a business within the Directive 'if there is no concomitant transfer of significant tangible or intangible assets or the taking over by the new employer of a major part of the workforce, in terms of their numbers and skills, assigned by the predecessor to the performance of the contract'.5 The facts of Stizen were that the applicant and seven other cleaners were employed by Zehnacker and worked as cleaners at the premises of a private churchrun school, in accordance with a contract between the school and Zehnacker. The school terminated the contract with Zehnacker with effect from the end of June