Transition of workplace - what does the new employer need to know?
Issues related to the transfer of the workplace are regulated by Article 231 of the Labor Code. this provision is mandatory, which means that the creation of an employment relationship with the new employer under the previous conditions occurs even if the party transferring the workplace and the party taking it over have agreed otherwise. The transfer of an establishment gives rise to obligations of the employer and special rights of employees working at the transferred establishment.
Effects of the transfer of a workplace on a new employer
A transfer of an establishment to another employer shall, by law, result in:
- a change of employer takes place by making the purchaser of the enterprise into the role of a new employer, towards all the employees taken over who were tied on the basis of an employment contract with the existing employer,
- the new employer acquires all the rights and obligations arising from the employment relationships established,
- the new employer shall be jointly and severally liable with the existing employer for obligations arising out of the employment relationship which arose before the transfer to him or her.
Informing employees about the expected date of the company’s transition to another employer
The company trade union organizations of the existing and new employer must notify the employees of the acquired employer in writing at least 30 days before the date of the transfer of the company of the expected date of the transfer of the company to the other employer.
In the absence of trade union organizations, the above information is provided by employers (new and existing).
The information on the date of taking over the workplace must include:
- the expected date of the company’s transition to another employer,
- legal and economic reasons for taking over the company,
- information on the social consequences for the employees of the undertaking taken over,
- information on the measures measured concerning the conditions of employment of workers, in particular working conditions, pay and retraining.
Propose new working conditions and pay for workers who have been hitherto engaged on a different basis than the contract of employment
If the previous employer employed employees who performed work on a basis other than an employment contract, i.e. on the basis of a contract of employment or another civil law contract, the new employer is obliged, on the date of taking over the employment establishment, to offer such persons new working conditions and pay and to indicate to them the period – not shorter than 7 days – for which they can submit a declaration of acceptance or refusal of acceptance of the proposed working conditions and pay.
If a person who has received a proposal for new terms and conditions of employment and pay refuses to accept it or does not reply within the time limit set – his contract with the existing employer shall be terminated at the end of a period equal to the period of notice from the date on which the employee made a declaration of refusal to accept the proposed terms and conditions or from the date by which he could make such a declaration.
In view of the above, it is not possible to continue employment with persons hitherto employed on the basis of, for example, a contract of commission or a B2B contract.
Worker’s entitlement to terminate employment without notice
An employee hitherto employed in the company being taken over may, within 2 months from the date of the transfer of the company to another employer without notice – with 7 days notice – terminate the employment relationship with the new employer.
Termination of the employment relationship in this mode shall have the effect on the employee of termination of the employment relationship upon notice.
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Employers should also be aware that the transfer of an undertaking or part of an undertaking to another employer cannot constitute a reason justifying the termination of the employment relationship by the new employer and that the earlier dismissals of employees on the pretext of the cessation of the activity of the existing employer, without observing the abovementioned procedure, constitute a circumvention of the applicable legislation.