Ruling maintains normal retirement age does not transfer under TUPE

The Court of Appeal has upheld a tribunal decision in the case of Cross v BA, that a normal retirement age does not transfer under TUPE regulations.

The claimants worked for British Caledonian, which had a retirement age of 60. After the airline’s take-over by British Airways (BA) in 1988, they continued to work for BA, whose retirement age was 55.

Some 13 years after the transfer, the employees were retired at age 55, and claimed unfair dismissal. BA argued that they had reached the normal retirement age, and therefore could not claim unfair dismissal.

The employees argued that British Caledonian’s normal retirement age was 60, and that this retirement age had transferred to BA under TUPE.

The Court of Appeal confirmed that a ‘normal retirement age’ is not the same a contractual retirement age, and is not one of the ‘rights, powers, duties and liabilities’ which transfers under TUPE.

Accordingly, the claimants could not maintain their argument that their normal retirement age was ‘frozen’ because of the TUPE transfer. The court found that since they had reached the normal retirement age of 55, they were not entitled to claim unfair dismissal.

Thanks to Daniel Barnett, a barrister at 1 Temple Gardens