This article looks at some of the important judgments in the area of the transfer of undertakings over the past year.
In Tarbert (Loch Fyne) Harbour Authority v Currie, the EAT holds that the employment tribunal had erred in finding that the employee had a retirement age of 70 simply because this was the age at which his predecessor had retired. No express oral term had been created through mention at the employee's job interview of his predecessor's retirement age.
In Royal and Sun Alliance Insurance Group plc v Payne, the EAT holds that the tribunal was correct to find that an employee with a contractual retiring age of 65 had been wrongfully and unfairly dismissed when his employer terminated his contract of employment at the age of 62.
In Porter v Cannon Hygiene Ltd (10 March 1993) EOR52F, the Court of Appeal in Northern Ireland holds that the Sex Discrimination (Northern Ireland) Order cannot not be construed so as to uphold a discriminatory retirement complaint by a private sector employee who was dismissed prior to the removal of the statutory exclusion preventing such complaints from being brought.
In Foster and others v British Gas plc (13.5.88) EOR21E, the Court of Appeal holds that whether a public employer is an "emanation of the State" so as to give its employees directly enforceable rights under EEC law depends upon whether its powers fall within the province of government.
In Foster v South Glamorgan Health Authority (15.3.88) EOR21F, the EAT rules that if the reason a discrimination complaint has been brought outside the statutory time limit is because during the period the law appears to have been changed by a new decision, a tribunal is entitled to consider whether it is "equitable" to allow the complaint to be heard.
In Duke v GEC Reliance (11.2.88) EOR19E, the House of Lords ruled that discriminatory retirement ages operated by private employers prior to the Sex Discrimination Act 1986 amendments were not unlawful either under UK law or EEC law.
In Rolls Royce plc v Doughty (28.7.87) EOR16B, the EAT holds that the company (before it was privatised) was not a State employer against whom the provisions of the Equal Treatment Directive relating to discriminatory retirement ages could be directly enforced. Another division of the EAT has held that British Gas, before privatisation, was not a State authority.
In accordance with the Marshall decision, state employees can challenge discriminatory retirement ages under European law.
In Parsons v East Surrey Health Authority (25.6.86) EOR10C, the EAT holds that the European Court of Justice's decision in Marshall v Southampton and South-West Area Health Authority that discriminatory retirement ages for men and women are incompatible with the Equal Treatment Directive is declaratory of the existing law.
HR and legal information and guidance relating to retirement ages.