Hollis Metal Industries v GMB Tupe Applies Outside The UK
NEW ISG LIMITED v VERNON
Informed Consent On The Part Of The Employee Is Needed For A Valid Transfer
A group of workers only found out who they would be working for after the tranfer had taken place. They objected to their transfer in that informed consent was needed for a TUPE transfer to take place. If no transfer had taken place, the new employer,New ISG could not enforce the restrictive covenants in the contract, to prohibit a wealth of confidential information belonging to ISG that the employees had appropriated. The EAT agreed with the workers that as they had not known who would be the transferee before the sale, no transfer had taken place for them, and their resignations were valid. Other factors such as not having been consulted about the transfer Were taken into account by the judge.
REGENT SECURITY SERVICES LIMITED v POWER
If a worker has rights conferred upon him by mandatory provisions of the Council Directive 2001/23/EC he cannot waive them.
Mr Power's right to retire at 60 could not could not therefore be waived. This was transferred and preserved by TUPE and was still available to him when he reached 60.
AMANDA JACKSON v COMPUTERSHARE INVESTOR SERVICES PLC
The Court of Appeal (CA) has upheld an Employment Appeals tribunal decision in turning down a worker's wish to be entitled to enhanced severance pay in the same manner as other workers in the transferee company. The decision held that when transferring to a new business, continuity and existing terms and conditions remain valid.
In 2004 Mrs Jackson transferred to CIS under TUPE 1981, and in 2005 she became redundant. Mrs Jackson wished to benefit from a 2002 enhanced severance scheme. This scheme was however closed before the transfer. Mrs Jackson argued that as TUPE grants continuity of employment, and she was employed by the transferor company in 1999, she was therefore eligible for the enhanced severance pay when she became redundant.
The CA decided that whilst TUPE conferred continuity on a statutory basis, contractual rights that she was not party to before the transfer, should remain separate from the provisions of TUPE 1981 (this will also apply to TUPE 2006).
Workers being transferred will not benefit from rights that are not contractually extant at the time of transfer. Closed schemes will not be available to them, although it is possible that a claim under equal pay legislation could be argued.
© Workrep 2007