TUPE—the key pensions cases
Produced in partnership with Paula Warnock of Hill Dickinson

The following Pensions practice note produced in partnership with Paula Warnock of Hill Dickinson provides comprehensive and up to date legal information covering:

  • TUPE—the key pensions cases
  • Beckmann
  • Background
  • NHS benefits on redundancy
  • Questions to the ECJ
  • The First Question
  • The Second Question
  • The ECJ’s decision
  • Impact of Beckmann
  • Martin
  • More...

TUPE—the key pensions cases

On the transfer of part or all of a business, transferring employees are migrated from the existing employer (the transferor) to the new employer (the transferee). European legislation was developed to provide protection for transferring employee’s rights in such circumstances—in the form of the EU Acquired Rights Directive 77/187/EEC (ARD 1977), which was subsequently repealed and replaced by the archived Acquired Rights Directive 2001/23/EC (ARD 2001). Together these directives are referred to in this Practice Note as the ARD Directives.

The ARD Directives were incorporated into UK law through the Transfer of Undertakings (Protection of Employment) Regulations 1981, SI 1981/1794, which was itself repealed and replaced by the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246 (TUPE 2006). While European directives do not generally constitute retained EU law and thus do not apply in the UK post-IP completion day (11pm on 31 December 2020), the UK laws implementing them (such as TUPE 2006) do constitute retained EU law and thus continue to apply in the UK post-IP completion day.

Like the ARD Directives they are derived from, both TUPE Regulations contain exclusions in respect of occupational pension benefits which relate to ‘old age, invalidity or survivors’. Unlike other rights and liabilities arising under or in connection with a contract of employment, the employment relationship or a collective agreement, such pension benefits

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