Veitch Penny LLP - Exeter | Crediton, Devon

Case

Power v Regent Security Services Ltd
Employment Appeal Tribunal

Issues

(1) Transfer of undertakings (Protection of Employment) Regulations (“the TUPE Regulations”)
(2) Variation of contractual terms
(3) Retirement

Facts

Whilst a number of areas referred to here are no longer in force, this case is of note as it deals with the issue of whether changes can be made to an employee’s contract following a transfer of employer under the TUPE Regulations.

Mr Power was employed to manage properties at the Halkins’ Estate in London. He had been subject to a number of changes in employers under the TUPE Regulations. Prior to the transfer considered in this case, his contract of employment had stated that his retirement age was 60. Mr Power also argued that during this period of employment, he was told that his retirement would coincide with the redevelopment of the estate where he worked. Before he was transferred into the Respondent’s (“Regent”) employ, Regent wrote to him advising that his retirement age would change to 65. This was accepted by both parties as a contractual change to his retirement age which had arisen as a result of the transfer.

Following the transfer to Regent, Mr Power purported to retire him at 60, despite his protestations.

Mr Power made a claim of unfair dismissal. At first instance, the Tribunal found that he could not issue the claim because he had reached his normal retirement age. However, it then went on to find that if he could have pursued a claim, then his dismissal would have to be found to be automatically unfair, because the statutory dismissal procedure had not been properly used.

Mr Power appealed to the Employment Appeal Tribunal (EAT), arguing that he should have retired at 65 i.e. as per Regent’s amended term, which Regent argued was void under the TUPE Regulations because it was a change which had arisen due to the transfer.

Decision

The central issue in this case was whether or not the contractual variation to Mr Power’s retirement age was enforceable or not. On this point, the Tribunal’s decision was overturned. The EAT felt that there was no public policy reason why an employee should not be able to rely upon a contractual amendment if it was to the employee’s advantage, even if that was the result of a TUPE transfer. The purpose of TUPE was to ensure that employees are not be prejudiced by a transfer.

Comments

This seems to suggest that employees have the right to pick and choose between the terms of their original and their varied contract of employment. This could be a tricky area given that different employees may have different views on each amended term. On this basis, it would be perfectly possible for a change to be valid for one employee and void for another.

Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.