In the case of Jackson v Computershare Investor Services plc  EWCA Civ 1065, the Court of Appeal has confirmed that TUPE cannot be relied upon to confer additional rights upon a transferring employee that he or she was not entitled to at the date of the transfer or to improve the situation of an employee after the date of the transfer.
Ms Jackson was employed by Ci (UK) Ltd in 1999 and did not have any rights to a severance pay scheme. Her employment was transferred under TUPE to Computershare Investor Services PLC in 2004. Computershare had a severance pay scheme that provided different benefits depending on when the employee became part of the scheme. There were more generous provisions for employees who joined Computershare prior to 1 March 2002. Ms Jackson became entitled to the scheme in December 2004 and was made redundant in 2005. When it came to calculating her length of service for the purposes of severance pay, the start of her continuous employment was 1999 but Computershare did not calculate her benefits on the basis of the enhanced provisions as she was only deemed to have joined Computershare in 2004.
Ms Jackson claimed unfair dismissal and breach of contract, alleging that she should have been considered to have joined Computershare in 1999 and therefore entitled to the enhanced benefits available to employees who joined Computershare prior to March 2002.
The tribunal held that as a matter of fact, Mrs Jackson had "joined" Computershare in 2004 but that Regulation 5(1) of TUPE 1981 meant that she should be treated as if her employment had started in 1999 for all purposes and allowed her claim.
Computershare appealed and the EAT held that TUPE could not be relied upon to create rights that did not exist at the date of the transfer. The Court of Appeal agreed with the EAT.
Impact on Employers
This decision is good news for employers in that it has now been clearly stated that it is not the role of TUPE to improve an employee's situation but to preserve existing rights.