The ECJ’s judgment in Beckmann v Dynamco Whicheloe Macfarlane Ltd, C-164/00,
has been remitted to the High Court. The ECJ held early retirement benefits
payable on redundancy under Whitley Council terms and conditions were not
‘benefits for old age, invalidity or survivors’. They were capable of transfer
under TUPE, despite the general exclusion of rights to occupational pension
schemes. The key issue will be whether the High Court follows the EAT’s
reasoning in Frankling v BPS Public Sector Ltd, 1999, IRLR 212, that because
the obligation to make the payments lay with the NHS superannuation scheme
rather than the employer, it was not an ‘obligation of the transferor’.
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If the exclusion of pension rights is to be interpreted as narrowly as the
ECJ suggests, employees could claim early retirement pensions from transferees.
As mentioned in our summary of Munro, the Court of Appeal is due to hear an
appeal against the EAT’s decision in Gridquest Ltd t/a Select Employment v
Blackburn, 2002, IRLR 168 as this magazine was going to press. This represents
a welcome opportunity for the court to clarify the legal position relating to
rolled-up holiday payments.
