Retirement age and TUPE

Case 4: The facts

Pilot Michael Bartlett Cross and cabin services director Carole Gibson had their employment transferred under TUPE from British Caledonian (BCal) to British Airways (BA). Both were compulsorily retired when they reached 55, BA’s compulsory retirement age for flight crew, although at BCal they would have been able to work until they were 60.

Cross and Gibbons could not challenge this decision under unfair dismissal law, because they were above the upper age limit*. Instead, they claimed that BA’s imposition of its retirement age breached the TUPE regulations.

The ruling

The Court of Appeal ruled that the normal retiring age is not the same as the individual’s contractual retirement age, because it is established with reference to other employees in the workplace — it is the normal retiring age for any employee who holds that position.

As the retirement age was not a contractual term, it was not protected under TUPE, so Cross and Gibbons’s claim failed.

Cross and others v British Airways [2006] EWCA Civ 549

* This limit will be abolished when the age discrimination regulations come into force on 1 October 2006.