Computershare Investor Services plc v Jackson: [2007] EWCA Civ 1065

CA: Mummery, Maurice Kay and Wilson LJJ: 30 October 2007

In 1999 the claimant began employment as a finance manager, under a contract of employment containing no enhanced severance pay terms, with a company that was transferred to the respondent employer in 2004 under a transfer to which the Transfer of Undertakings (Protection of Employment) Regulations 1981 applied. Under that employer’s redundancy policy employees who “joined” it before March 2002 enjoyed more advantageous terms than those who joined after that date. The claimant was made redundant in 2005 and claimed that, pursuant to regulation 5(1) of the 1981 Regulations, she was entitled to the more advantageous redundancy terms. The employment tribunal found that, although as a matter of fact the claimant “joined” the respondent employer in 2004, regulation 5(1) operated so as to deem the claimant to have joined as from 1999, so that she was entitled to the more advantageous terms. The Employment Appeal Tribunal allowed an appeal by the employer.

The claimant appealed on the ground that regulation 5(1) and the Acquired Rights Directive 2001/23/EC operated so as to entitle her to the more advantageous severance terms.

The Court of Appeal held:
The objective of the Transfer of Undertakings (Protection of Employment) Regulations 1981 and the Acquired Rights Directive 2001/23 was not to confer additional rights on the transferred employee or to improve his situation, but to prevent an employee being prejudiced as a result of the transfer of an undertaking so that he could work for the new employer on the same conditions as those agreed with the transferor. The deeming provision in regulation 5(1) did not give the transferred employee access to employment benefits other than those he was entitled to before the transfer. Accordingly, since, as the tribunal found, the claimant had “joined” the respondent employer after March 2002, she was not entitled to the more advantageous terms, notwithstanding that the calculation of her severance pay was made on the basis of her deemed continuity of service when she began employment with the transferor in 1999.

The appeal was dismissed.

Appearances: Patrick Green (Bevans, Bristol); Brian Napier (Brodies LPP, Edinburgh).