TUPE - Pension Liabilities

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for providing this case summary]

Do entitlements to an early retirement pension transfer under TUPE, and if so, what is the scope of the transferee's obligations?

The High Court in Procter & Gamble v SCA clarified a number of issues in this highly important case.

In 2007 Procter & Gamble sold its Family Care business to SCA. TUPE applied. The dispute related to the pensions of employees at the P & G Manchester manufacturing site who transferred to SCA under TUPE. The P & G defined benefit scheme made provision for early retirement benefits (ERB's). It was common ground that SCA did not want to take on any pension liability.

Reg 10 of TUPE provides that so much of contract of employment as relates to an occupational pension scheme that concerns old age, invalidity or survivors' benefits does not transfer under TUPE. But following the CJEU cases of Beckmann v Dynamco Ltd [2003] ICR 50 and Martin v South Bank University [2004] 1 CMLR 472 early retirement benefits are outwith this exclusion, and transfer under TUPE. This was of critical importance to SCA with regard to its liability under TUPE and for both employers under the pensions provisions of the sale and purchase agreement. Hildyard J made the following points.

• Even though the ERB entitlement was discretionary it fell within the concept of 'rights and obligations' transferring under TUPE;
• The discretionary power (to be exercised in good faith) to provide ERBs therefore now vested in the entity that now employed the employees;
• The next question was whether liability for all ERBs, or only liability in respect of the enhancement until normal retirement age, transfers under TUPE. In the hearing this was referred to variously as the 'windfall' or 'smiling pensioner' point, and sometimes 'the double pension issue'. For the transferring employees were already entitled to deferred pensions from the P&G Fund. So could it be right that the operation of TUPE entitled them also to claim from SCA pension benefits which (together with the enhancements) substantially duplicated deferred pension benefits?

But TUPE only protects employment rights. It is not designed to enhance them. So the transferee was only obliged to meet the enhancement until normal retirement age, and not thereafter.