TUPE cannot be used to increase the rights of transferred employees, only to protect them.

01.01.07

TUPE cannot be used to increase the rights of transferred employees, only to protect them.

This was the principle confirmed by the Court of Appeal in Jackson v Computershare Investor Services, a case in which Brodies represented Computershare.

Mrs Jackson commenced employment with Ci (UK) Ltd in 1999. Her employment transferred to Computershare Investor Services plc in 2004 in terms of the Transfer of Undertaking (Protection of Employment) Regulations 1981 (1) (TUPE). As a result she transferred on her existing terms and conditions of employment and with her continuity of employment preserved. Her contract of employment with Ci contained no provision for enhanced redundancy pay.

Computershare operated enhanced redundancy terms which provided one set of benefits for employees who joined the company prior to 1 March 2002 and another for those who joined after that time. The scheme specifically used the word "joined" rather than making entitlement dependent on the start of employment (continuous or otherwise).

Mrs Jackson's employment was terminated by reason of redundancy in 2005. Her enhanced redundancy payment was calculated on the basis of her length of service from 1999 and with reference to the "post-2002" terms. She claimed unfair dismissal and breach of contract arguing that, as her continuous employment started in 1999, she was entitled to the enhanced severance benefits for employees who joined Computershare prior to 1 March 2002.

The Court of Appeal decided that "joined" meant the date when Mrs Jackson had actually joined Computershare and not the date of the commencement of her employment with Ci. Therefore, as she only joined Computershare in 2004 she was not entitled to the enhanced benefits.

Key Point The purpose of TUPE is to protect the existing rights of employees on a transfer. It cannot be used to create additional rights that did not exist prior to the transfer of employment.

Jackson v Computershare Investor Services plc 2007 EWCA Civ 1065

(1) The result of the case would have been the same had it been decided under the Transfer of Undertakings (Protection of Employment) Regulations 2006