Does a "normal retirement age" transfer under TUPE?

The Court of Appeal has upheld the EAT's decision in Cross v BA, that a normal retirement age does not transfer under TUPE.

The Claimants worked for British Caledonian, who had a retirement age of 60. After its take-over by BA in 1988, they continued to work for BA, whose retirement age was 55.

Some 13 years after the transfer, the Claimants were retired at age 55. They claimed unfair dismissal. BA argued that they had reached the normal retirement age, and therefore could not claim unfair dismissal. The Claimants argued that British Caledonian's normal retirement age was 60, and that this retirement age had transferred to BA under TUPE.

The Court of Appeal confirmed that a 'normal retirement age' is not the same a contractual retirement age, and is not one of the 'rights, powers, duties and liabilities' which transfers under reg. 5 of TUPE. Accordingly the Claimants could not maintain their argument that their normal retirement age was 'frozen', because of the TUPE transfer, at 60 (rather than 55). Since they had reached the normal retirement age of 55, they were not entitled to claim unfair dismissal.

Cross v BA