TUPE does not grant additional benefits
Jackson v. Computer-share Investor Services
Facts
J. was employed by CI from 1999. In 2004 CI’s business was transferred to Computer-share. In 2005 J was made redundant. She claimed an enhanced redundancy payment under the Computer-share scheme which had been made available to any employee joining prior to 1st March 2002. The Tribunal found that she was entitled to that additional payment.
On appeal the Employment Appeal Tribunal and Court of Appeal rejected that viewpoint. They took the view that the terminology “joined” meant the physical date of joining not the notional TUPE date for continuous service. So J. actually joined in 2004 and was not entitled to the enhanced payments
The Court of Appeal took the view that Regulation 5 (1) of the 1981 regulations (New Regulation 4) did not give a transferred employee access to any additional benefits. The transfer exists to protect existing rights only. She could not be an employee who joined Computer-share pre 2002. She had not become an employee of Computer-share until the transfer in 2002.
Comment
This decision confirms that the relationship under a TUPE transfer is one that continues. It originates from the time that the first contract was struck and so the employee cannot acquire post commencement benefits from the new company as she was not an employee of that Company prior to the transfer. The employee brings her entitlements and does not acquire them.
Review
This case confirms the individual nature of the TUPE regulations, the interpretation lies in the individual facts of each case. TUPE is an area where any employer contemplating the position would be best to take professional consultancy advice to make sure that they get it right.
Countries may set a default age for retirement
Felix Palacios de la Ville v. Cortefiei Servicos SA-European Court of Justice
Facts
P worked for CS as an organisational manager. He was born on 3rd February 1940 and on 18th July 2005 he was notified of his dismissal in accordance with the terms of a collective agreement.
The Court has confirmed that Recital 14 of the Equal Treatment Directive did not preclude national Governments from setting their own default age and that there was no reason why a collective agreement could not agree a retirement date for those bound by the collective agreement. The Court confirmed that the Spanish Government’s action was not unlawful. It could be justified by a legitimate aim, that of promoting employment and reducing unemployment. The means were also appropriate as the worker’s employment could not be terminated unless there was an appropriate pension.
Comment
This case confirms that the provisions in relation to mandatory retirement do fall within the Directive. The case is a boost for the Government in that it also confirms that it is possible to objectively justify a compulsory retirement age provided there is good reason and that there is an adequate pension fund provision.
Review
The Employment Equality Regulations on age have focused heavily on retirement and recruitment. Companies need to ensure that in these two key areas they have an effective policy and procedure which is legally compliant with the regulations. Retirement is a fact of life and many companies do look to workers retiring to provide for the through put of employees. At the same time many companies appreciate and value the contribution that an older worker can make to the success of the Company. A default retirement age is probably not unreasonable and might be justified by necessity although with retirement pensions to change it would be difficult to see the current age of 65 remaining for too long. Companies though should reflect on the experience that they are potentially losing by rigidly enforcing a default retirement. Possibly far better to allow employees to carry on beyond provided a new date is set for retirement and the proper procedure used. It may be useful to set an annual review of the position.
