Beckmann v Dynamco (High Court 14/1/2000, unreported)

We reported the disappointing decision of the EAT in Frankling & others v BPS Public Sector Limited in Issue 27 of LELR. In that case, the EAT found that redundancy benefits payable under Section 46 of the NHS Whitley Agreement did not transfer under TUPE because they were akin to pension rights. The case was settled before the Court of Appeal heard the case, leaving the EAT judgment intact.

In a case backed by UNISON where Thompsons is instructed - Beckmann v Dynamco - the same issue has now been referred by the High Court to the European Court of Justice. A decision can be expected in about 18 months time.

If successful, the case will enable many workers who transferred under TUPE to the private sector and who are later made redundant at age 50 or over to get the public sector redundancy terms from their new employer.

The issue is whether the Whitley terms relate to old age, invalidity or survivors' benefits and so are excluded from TUPE protection, or not. Also in issue is whether it matters that the sums are paid under a statutory instrument, rather than the contract of employment.

Similar provisions to those found in Section 46 of the Whitley Agreement in the NHS apply in local government, the Civil Service and throughout the public sector. 
The case will therefore have repercussions across the public sector and private contractors should take note of their potential future liability when they bid for public sector contracts.

Union members in the affected categories may need careful advice.