Regent Security Services Ltd v Power [2007] EWCA Civ 1188
The respondent, Mr Power, had an employment contract under which he was forced to retire at the age of 60. However, following a transfer agreement with Regent Security Services Ltd, his retirement age was changed by agreement to 65. On reaching 60, Mr Power was dismissed by Regent on the basis that his original contractual retirement age of 60 was his ‘normal retirement age’ under the Employment Rights Act 1966. Mr Power disputed this and was keen to pursue a claim for unfair dismissal.
At first instance the Employment Tribunal held that the consensual variation of the respondent’s retirement age was void and that under Regulation 5 of the 2006 TUPE Regulations, the original contractual terms of Mr Power’s took precedence over the revised terms. His original retirement age of 60 thus remained valid. The TUPE Regulations were designed to enforce the EC Acquired Rights Directive 1977/187 and their purpose is to safeguard employees rights, including during a transfer.
On appeal, the Employment Appeals Tribunal found in favour of Mr Power. They held that the TUPE Regulations were intended to ensure that employees were not prejudiced as a result of a transfer. If an employee were barred from enforcing more favourable terms under his new contract, then this would be the case.
The matter was then referred to the Court of Appeal on 9th October 2007. Lord Justice Mummery found that a transferred employee should be allowed to take advantage of his original contractual terms as well as the varied terms of the new contract. As the respondent’s retirement age had been varied by agreement, he should be treated as having gained an additional right and be allowed to benefit from this. He had essentially not waived his original right, but gained another. Mr Power was therefore entitled to remain at work until the age of 60 or 65 as he so wished. His dismissal at 60 contradicted the agreed terms of his transferred agreement and he was free to pursue a claim for unfair dismissal accordingly.
This case emphasises that the purpose of the TUPE Regulations is to protect employees rather than deny them recourse to enhanced terms under new contracts.