In Regent Security Services v Power the Court of Appeal held that an employee transferring under TUPE not only retains the rights that transfer with him but can also rely on any new rights conferred by terms agreed with the new employer. In effect, the employee has the right to choose between the old transferred rights and the newly agreed ones. It is only if the new terms are to the employee’s detriment that he can refuse to accept or rely upon them. This, ruled the Court of Appeal, is consistent with the intention of the European Acquired Rights Directive (which was implemented by TUPE) to protect employees from dismissal or from changes to terms and conditions. It was not the intention to bar an employee from benefiting from any changes. It follows that transferee employers should be careful when agreeing any changes post transfer which may benefit the employee to ensure that they cannot rely on any new term if they seek to rely on their old transferred term.
…TUPE – one for the Employers!
But not all TUPE cases go the employee’s way. In Jackson v Computershare Investor Services PLC, the Court of Appeal ruled that Mrs Jackson, who transferred under TUPE from Ci to CIS in June 2004, could not seek to claim a benefit provided by CIS backdated to the date of her joining Ci in 1999. CIS enjoyed an enhanced redundancy scheme which distinguished between pre March 2002 joiners and those who joined after 1st March 2002. Mrs Jackson claimed that she should be treated as a pre March 2002 joiner (and so enjoy better benefits) but the Court of Appeal disagreed, reiterating that the purpose of the Acquired Rights Directive and TUPE was not to create rights that did not exist before the transfer.