Buddy says:  TUPE cannot be relied on to create an entitlement to a contractual benefit that the employee did not enjoy prior to the transfer of their employment. Therefore if there was no entitlement to an equivalent bonus with the previous company, then the contractual bonus does not have to be paid to her.

Employer information:  The recent case of Jackson v Computershare Investor Services plc (2007), dealt with the issue of contractual rights to an enhanced redundancy package.  In this case, the employee was employed by Ci (UK) Ltd from 1999 until June 2004, when she transferred to CIS plc by virtue of TUPE. CIS operated a dual system of redundancy terms which gave a contractual right to an enhanced redundancy package for those who joined the company before 2002.  When Ms Jackson was made redundant from CIS in 2005, she argued that since TUPE operates in such a way as to treat her as having continuity of employment with CIS dating back to 1999, she should be afforded the benefit of the pre-2002 terms, and so have an enhanced redundancy package.

The Court of Appeal disagreed.  It held that TUPE could not be relied upon to create an entitlement to a contractual benefit that the employee did not enjoy prior to the transfer of their employment.  The fact that Ms Jackson was to be treated for statutory purposes as having continuity of employment back to 1999, did not affect her contractual entitlement to a scheme that did not exist when she was employed by her previous employer.  The question of whether she was entitled to the pre-2002 terms depended on the finding, as a matter of fact, as to when she actually joined CIS. Since the tribunal had found that this was in 2004, Ms Jackson was not entitled to the enhanced redundancy.