Changes to contracts and TUPE

Case 1: The facts

A number of pilots and cabin crew were transferred to British Airways from British Caledonian. British Airways had a retirement age of 55, while at British Caledonian they did not retire until 60.

Some employees argued that they were entitled to maintain the higher retirement age under the TUPE regulations, and consequently could pursue claims of unfair dismissal. Employees are not entitled to claim unfair dismissal if they are over the normal retiring age.

Other claimants said that British Airways' lowering in 1971 of its retirement age for new staff, from 60 to 55, amounted to indirect discrimination. This was because the number of men with long service (and who were therefore entitled to retire at 60) was significantly more than the number of women.

The ruling

Although contractual terms transfer under TUPE, the Employment Appeal Tribunal (EAT) held that the contractual retirement age was only the starting point in determining the company's normal retirement age. The normal age here, as applied over a 13-year period, was 55.

The EAT also held that requiring staff hired after 1971 to retire at 55, while those employed earlier could still retire at 60, was indirectly discriminatory - but was justified on the grounds of costs.

Cross and others v British Airways [2005] IRLR 423