Facts
Mrs Jackson (J) was employed by Computer Investors (CI) in 1999. Five years later, in 2004, CI's business, and J’s employment, transferred to Computershare Investor Services plc (CIS). CIS operated a dual system of redundancy terms which offered more generous benefits for those employees who had joined before 2002. Mrs Jackson was made redundant by CIS in 2005.
One of the effects of the TUPE Regulations is to treat transferring employees as having continuous service with the incoming employer from the date they became employees of the outgoing employer. In J’s case, this meant her continuous service dated back to 1999. This was not disputed.
Central Issue
The area of contention, however, was whether TUPE went one step further and meant J should be afforded the benefit of the more generous pre-2002 enhanced redundancy terms.
An employment tribunal found as a fact that J had joined CIS at the point of transfer, but that J should be treated as having ‘joined’ CIS before 2002. On the company’s appeal to the employment appeal tribunal (EAT), it held that this interpretation of the TUPE Regulations was incorrect – just because J was treated under the law as having continuous service from 1999, this did not affect her contractual entitlement to a scheme that did not exist at her old employer. J appealed to the Court of Appeal.
Court of Appeal’s findings
The Court of Appeal dismissed J’s appeal. It held that the TUPE does not give a transferred employee access to benefits other than those to which the employee was entitled prior to the TUPE transfer. The purpose of TUPE is to safeguard employees’ existing rights. TUPE could not be used to ‘miraculously transform’ J into someone who had joined CIS pre-2002 when the employment tribunal had already concluded as a matter of fact that she had joined it in 2004. J was not therefore entitled to the enhanced payment.
Comment
The Court’s decision itself is not remarkable. It is perhaps rather more surprising that this case made it as far as the Court of Appeal.
As the Court was at pains to point out, the purpose of both European and national legislation concerning the transfer of undertakings is simply to safeguard, not improve upon, employees’ rights on a transfer.
This case was decided under a specific provision of the 1981 TUPE Regulations, which have now been superseded by the 2006 TUPE Regulations. However, this case will continue to hold good under the new Regulations as the particular provision under scrutiny is in the same terms. The principle in this case therefore applies equally to transfers which occurred after 6 April 2006 – the date when the new Regulations came into force.