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Early retirement benefits can transfer under TUPE
Martin & others v South Bank University, European Court of Justice
(C4/01) 6 November 2003
Martin, Daby and Willis were nursing lecturers at Redwood College, which was
part of the NHS.
Their employment was governed by certain Whitley Council conditions relevant
to the public sector. Nursing education subsequently became the responsibility
of the Ministry of Education, and the college became part of South Bank
University.
Before the transfer, SBU informed the college staff they would be offered
new employment contracts, but that they could not remain on the NHS retirement
scheme. The applicants rejected the SBU terms and conditions of employment and
remained on their NHS terms. However, they joined the Teachers’ Superannuation
Scheme and applied to transfer their NHS pension rights into that less
favourable scheme.
Martin and Daby accepted SBU’s offer to take early retirement; the issue was
whether they were entitled to the NHS terms of early retirement or those of
SBU.
The ECJ held that rights and benefits contingent upon dismissal or the grant
of early retirement by agreement with the employer, fall within the rights and
obligations referred to in Article 3(1) of the directive. Accordingly, SBU
could not offer the college staff less favourable early retirement terms than
those offered by the NHS.
But as those NHS terms derived from the Whitley Council conditions, the
tribunal must determine whether that collective agreement ceased to apply at
the time the applicants accepted early retirement.
Discretionary payments were discriminatory
Bradley & others v MFI UK Limited IRLB 723 October 2003
Bradley worked in the laminates section at the Stockton-on-Tees factory
which operated five days a week. MFI then introduced a 24-hour, seven-day
operation for part of the laminates section, but Bradley was unaffected by this
shift change.
The new shift was unpopular, so MFI made discretionary ‘disturbance’
payments of £280 to the 193 men and 11 women affected. These payments were not
offered at other plants where shifts were changed.
When further shift changes were made at the Stockton plant, and disturbance
payments were not provided, Bradley complained of sex discrimination. MFI
appealed, saying payments were only made to aid the initial shift changes
MFI argued the tribunal should have considered all the staff in all its
factories where disturbance payments could have been made. But the EAT held the
tribunal hadn’t been ‘illogical’ to only consider the staff in the plant where
the practice was applied. Irrespective of whether a narrow or wide pool of
workers was taken, a disproportionate impact had been established on the
figures.
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