Cross and Gibson -v- BA
The 1981 (Transfer of Undertakings (Protection of Employment) regulations (better known as TUPE) give protection to employees in the event of a transfer of an undertaking from one employer to another.
In Cross and Gibson -v- BA, the Court of Appeal has said that an employee’s normal retirement age does not transfer under the regulations.
What were the basic facts?
Before April 1988 Mr Cross and Mrs Gibson were employed by BCal, which allowed its flying crew to work until 60. After its takeover by BA in 1988, both accepted contracts on BA terms. This stipulated flying crew had to retire on full pension at 55.
A year after the merger, Mr Cross moved from Gatwick to Heathrow and would have had to sign a new contract with standard BA terms had he not already done so. Mrs Gibson also changed her contractual status, moving from full to part time work on more than one occasion.
BA then told Mrs Gibson in 2001 (13 years after the transfer) and Mr Cross in 2002 (14 years post transfer) that they would have to retire at 55 in accordance with the retirement and pension scheme rules.
Mr Cross and Mrs Gibson then tried to claim unfair dismissal, arguing that they were entitled to continue working until aged 60, despite the fact that they had agreed to the lower retiring age. They said the TUPE regulations had “negated” their acceptance of the new term.
What does the law state?
Regulation five of TUPE says that any contract that has been transferred under the regulations has to be adopted wholesale by the transferee.
Employers can make changes to contracts, but the transfer cannot be the reason for the change. And according to the rule in Daddy’s Dance Hall (Foreningen af Arbejdsledere i Danmark -v- Daddy's Dance Hall A/S), employees cannot waive the rights conferred on them by TUPE.
However, the Court also had to consider section 109 of the Employment Rights Act, which says that employees cannot claim unfair dismissal after they have attained the “normal retiring age” for someone in their “position”.
What did the parties argue?
Mr Cross and Mrs Gibson argued that their contractual retirement age with BCal was also their normal retiring age under the statute. And that, because of regulation five, their original contractual retirement age of 60 and their corresponding normal retiring age had transferred over with them to BA.
BA said, however, that the statutory normal retirement age (which was different from a contractual one) did not transfer over because it was not an individual “right”. In any event, Mr Cross and Mrs Gibson had made a number of post transfer changes to their contracts, which invalidated the rule in Daddy’s Dance Hall.
Did the statutory retirement age transfer?
And the Court agreed with BA. It reasoned that, although the focus of the TUPE regulations was on protecting the rights of individual employees, the section 109 “normal retiring age” was conceptually different from a contractual retirement date and was not one of the “rights, powers, duties and liabilities” that transferred under regulation five.
All that had transferred was a general law right not to be unfairly dismissed before reaching normal retirement age, whatever that might be at the time of dismissal (not at the time of the transfer)
The normal retiring age, it said, could not be “frozen in perpetuity as at the moment of transfer”. As they had reached the normal retiring age of 55, they could not claim unfair dismissal.