Cross & Anor v British Airways Plc

Cross & Anor v British Airways Plc

The statutory normal retiring age under section 109 of the Employment Rights Act 1996 is not a right or liability capable of being transferred under the TUPE Regulations. It is determined by the group norm at the time of dismissal, not by the contractual or normal retiring age at the time of transfer. Therefore, the appellants were subject to BA’s normal retiring age of 55 at the time of their dismissal, and their claims for unfair dismissal fail.

Parties
Appellant: Michael Bartlett Cross; Appellant: Carole Gibson; Respondent: British Airways PLC
Jurisdiction
England and Wales
Judgment Date
11 May 2006
Procedural Posture
Appeal / Court of Appeal Judgment on Appeal From Employment Appeal Tribunal
Outcome
Appeal dismissed
Legal Topics
Transfer of Undertakings (tupe), Unfair Dismissal, Retirement Age, Employment Contracts, Implementation of EU Directives
Employment Law Labour Law European Union Law Transfer of Undertakings (tupe) Unfair Dismissal Retirement Age Employment Contracts Implementation of EU Directives

Case Brief

Summary, issues, holding and outcome

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Parties

Michael Bartlett Cross

Appellant

Carole Gibson

Appellant

British Airways PLC

Respondent

Procedural Posture

Appeal / Court of Appeal Judgment on Appeal From Employment Appeal Tribunal

Legal Issues

  1. 1 Whether the statutory normal retiring age under section 109 of the Employment Rights Act 1996 is transferable under the TUPE Regulations
  2. 2 Whether post-transfer conduct by employees can result in a substitution of a new and different statutory normal retiring age

Ratio Decidendi

The statutory normal retiring age under section 109 of the Employment Rights Act 1996 is not a right or liability capable of being transferred under the TUPE Regulations. It is determined by the group norm at the time of dismissal, not by the contractual or normal retiring age at the time of transfer. Therefore, the appellants were subject to BA’s normal retiring age of 55 at the time of their dismissal, and their claims for unfair dismissal fail.

Court Disposition

Appeal dismissed