Pensions under TUPE

Case 4: The facts

A number of part-time employees in the electricity industry were transferred under TUPE following privatisation. They later brought equal pay claims on the grounds that they had suffered indirect discrimination by being excluded from joining their original employer's occupational pension scheme.

The employees brought their claims more than six months after the TUPE transfer, but while they were still employed by the employer to which they had transferred.

A claim under the Equal Pay Act must be brought within six months of the end of the employment to which it relates.

The ruling

Occupational pension rights do not transfer under the TUPE regulations - this means that any claim relating to them must arise out of the contract with the original employer (the "transferor"), and so must be brought within six months of the date on which that contract ended.

The Court of Appeal held that the time for bringing such a claim begins from the date of the TUPE transfer, so the employees had left it too late to make their claim.

Powerhouse Retail Ltd & others v Burroughs & others [2004] IRLR 979 (formerly called Preston & others v Wolverhampton Healthcare NHS Trust)