The Court of Appeal has held in the case of Regent Security v Power that a change in terms and conditions made in the connection with the transfer which was favourable to the employee was valid. Previous case law had suggested that both employer and employee could rely only on the terms of contract prior to the transfer and would not be bound by new terms introduced in connection with the transfer.
On transfer of his employment to Regent it was agreed by consent that Mr P's contractual retiring age would be changed from 60 to 65. When he was subsequently dismissed at age 60 Regent argued that the agreed variation was void and his retiring age was 60 (thus seeking to deprive Mr P of the statutory right not to be unfairly dismissed and of redundancy compensation).
The Court of Appeal found that the aim of TUPE (and the Acquired Rights Directive from which it is derived) is to safeguard the existing rights of employees on the transfer of an undertaking. The aim was not to safeguard the rights of employers. Allowing an employer to rely on TUPE in order to prevent a transferred employee from taking the benefit of a varied term is not required either by the aim of, or the provisions of, the Directive and TUPE. Mr P had an acquired right to retire at 60. This could not be removed by the transfer. However, there was nothing to prevent him obtaining an additional right to a retiring age of 65. Mr P could choose between enforcing the transferred right or the new right.