EAT Transfer of Undertakings – Acquired rights directive
The appellant was employed to manage a particular estate under a contract which stipulated that his contractual retirement age was 60. The part of the business in which he was employed was transferred. He was in a unique position; no-one else was transferred. He agreed with the respondent transferee to a change in his contract which stipulated that the contractual retirement age would be 65. There was no other contractual alteration. There was also evidence that he had been told that he would not in fact be retired until the property for which he was responsible was redeveloped, and that this would be sometime after his 60th birthday. In fact the respondent sought to compel him to retire on his 60th birthday. He brought a claim for unfair dismissal, but the respondent contended that 60 was the normal retirement age and since he had reached that age he was precluded from pursuing that claim by section 109 of the Employment Rights Act 1996.
The appellant contended that the normal retirement age was 65, either because of the contractual variation, or because even if the contractual retirement age was 60, he had an expectation that he would not be retired until redevelopment, and that since this did not identify any specific age, the default age of 65 should apply in accordance with section 109. The respondent alleged that the contractual variation was invalid because it was a change made by reason of the transfer; and that for an employee in a unique position, the normal retirement age was the contractual retirement age. The Employment Tribunal accepted both these submissions.
On appeal, the EAT accepted that if the variation were void, then the Tribunal was right to find that the normal retirement age was the contractual retirement age and had not been altered by any contrary expectation. However, the EAT held that the contractual retirement age had been varied to 65, and that there was no reason why that should not be enforced by the employee. The variation was for his benefit, and the case of Daddy’s Dance Hall [1988] IRLR 355 did not prevent such a variation being valid and effective. Nor was it necessary to construe regulation 12 of the Transfer of Undertakings Regulations so as deny the appellant the right to rely on this change. A transferee employer, unlike an employee, cannot invoke either the case law of the ECJ or regulation 12 to escape contractual obligations he has voluntarily undertaken, even where they are the result of a variation in the contract which is by reason of the transfer. In the event, the appeal was allowed.
Judges:
The Honourable Mr Justice Elias (President)
Citations:
[2007] UKEAT 0499 – 06 – 2901, UKEAT/0499/06
Links:
Jurisdiction:
England and Wales
Cited by:
Appeal from – Regent Security Services Ltd v Power CA 20-Nov-2007
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Lists of cited by and citing cases may be incomplete.
Employment
Updated: 09 July 2022; Ref: scu.248275