Lawyer Monthly Magazine -December 2019 Edition

towards the unions whenever the transferor does not meet the above size requirements. Employees’ protections outlined above apply in any case of transfer, except for those at companies which are facing a crisis (to be duly attested by public bodies) or are subject to an insolvency procedure, to the extent that an agreement hereof with the unions is reached. In particular, the above protections may be partially (in case of a company’s crisis, as well as special administration procedures or restructuring agreements, where these insolvency procedures are not leading to the shutdown of the business) or fully (in case qualify as null and void, this does not prevent the transferor (until the transfer date) or the transferee (once the transfer takes place) from dismissing employees according to general rules governing such a matter, whereby employees may be lawfully dismissed for individual redundancy. What should businesses and employers be aware of, in order to not fall short on compliance? Businesses and employers must consider that the union’s information procedure is time- triggered, as the failure to start this procedure qualifies as anti-union conduct and, according to certain case-law precedents, may lead to a judicial order providing for the invalidity of the entire transfer agreement. It is worth mentioning that such a procedure is often untimely in the practice as this, mainly for confidentiality reasons, is generally started 25 days before the closing date, while this should be enforced 25 days before the signing date. LM of bankruptcy, restructuring agreements, compulsory administrative winding-up or special administration procedures, where these insolvency procedures are leading to the shutdown of the business) departed from. In case of transfers triggered by a share deal, neither the unions’ information procedure nor the employees’ protections under the TUPE regulations apply (as there is no change in the employer). Can employers still make employees redundant during transfer? Even if - as said above - dismissals relying on the transfer 71 DEC 2019 | WWW.LAWYER-MONTHLY.COM Expert Insight By Angelo Zambelli, Grimaldi Studio Legale “Businesses and employers must consider that the union’s information procedure is time-triggered” CONTACT: Angelo Zambelli Co-Managing Partner Grimaldi Studio Legale Corso Europa no. 12 Milan, Italy Tel: +39 02 3030 9390 Fax: +39 02 3030 9340 azambelli@grimaldilex.com Angelo Zambelli Angelo Zambelli is the Co- Managing Partner, Member of the Executive Committee and Head of the Employ- ment and Industrial Rela- tions Department of Grimal- di Studio Legale.