Transfer law

Rulings this month cover retirement ages and deciding whether employees have transferred.

The key developments

* Normal retirement age is not necessarily the same as contractual retirement age (case 1).

* Determining whether an employee has been assigned to carry out work that is eventually transferred is essentially a decision on the facts of the case (case 2).

* The length of time of any cessation in business is relevant in deciding whether there has been a TUPE transfer (case 3).

The basic legal rules

Under the transfer regulations (TUPE), when a business is transferred from one employer to another, the employees doing the work should also transfer on their existing terms and conditions. To come within TUPE, there has to be a relevant transfer of an activity that amounts to a "stable economic entity".

The employer before the transfer is referred to as the "transferor", and the employer to whom the business transfers is the "transferee".

Under TUPE, most legal liabilities (such as outstanding legal cases being taken against the transferor) transfer to the transferee.

An employee covered by TUPE has the right to continued terms and conditions, including redundancy terms. Additionally, there is no time limit after which TUPE protection no longer applies. However, this does not mean that changes to transferred employees' terms and conditions can never occur.