No Additional Rights Created on a TUPE Transfer

The Transfer of Undertakings (Protection of Employment) Regulations (TUPE) cannot be used to create rights for a transferring employee which the employee did not have prior to the relevant transfer.

In Jackson ("J") v Computershare Investor Services Plc [2007] EWCA Civ 1065, J transferred under TUPE to the transferee company in 2004. The transferee company had in place a redundancy payment scheme which provided more generous benefits to those employees who had joined before 1 March 2002. J contended that she should benefit from the transferee company's 2002 redundancy scheme since TUPE treated her as having been employed by the transferee company from the date on which she first joined the transferor company in 1999.

The Court of Appeal held that J was not entitled to participate in the transferee company's pre-2002 redundancy payment scheme as the effect of TUPE was to safeguard an employee's existing rights. It did not operate to create new rights which an employee had not been entitled to prior to their transfer.

This case was decided under the old TUPE Regulations, which have since been replaced by the Transfer of Undertakings (Protection of Employment) Regulations 2006. The legal principle which has resulted from this case, however, will also apply to transfers which occur after April 2006.