Previous Article Next Article Comments are closed. Case round upOn 2 Dec 2003 in Personnel Today Related posts:No related photos. Case round-up by Eversheds 020 7919 4500Early retirement benefits can transfer under TUPE Martin & others v South Bank University, European Court of Justice(C4/01) 6 November 2003 Martin, Daby and Willis were nursing lecturers at Redwood College, which waspart of the NHS. Their employment was governed by certain Whitley Council conditions relevantto the public sector. Nursing education subsequently became the responsibilityof the Ministry of Education, and the college became part of South BankUniversity. Before the transfer, SBU informed the college staff they would be offerednew employment contracts, but that they could not remain on the NHS retirementscheme. The applicants rejected the SBU terms and conditions of employment andremained on their NHS terms. However, they joined the Teachers’ SuperannuationScheme and applied to transfer their NHS pension rights into that lessfavourable scheme. Martin and Daby accepted SBU’s offer to take early retirement; the issue waswhether they were entitled to the NHS terms of early retirement or those ofSBU. The ECJ held that rights and benefits contingent upon dismissal or the grantof early retirement by agreement with the employer, fall within the rights andobligations referred to in Article 3(1) of the directive. Accordingly, SBUcould not offer the college staff less favourable early retirement terms thanthose offered by the NHS. But as those NHS terms derived from the Whitley Council conditions, thetribunal must determine whether that collective agreement ceased to apply atthe time the applicants accepted early retirement. Discretionary payments were discriminatory Bradley & others v MFI UK Limited IRLB 723 October 2003 Bradley worked in the laminates section at the Stockton-on-Tees factorywhich operated five days a week. MFI then introduced a 24-hour, seven-dayoperation for part of the laminates section, but Bradley was unaffected by thisshift change. The new shift was unpopular, so MFI made discretionary ‘disturbance’payments of £280 to the 193 men and 11 women affected. These payments were notoffered at other plants where shifts were changed. When further shift changes were made at the Stockton plant, and disturbancepayments were not provided, Bradley complained of sex discrimination. MFIappealed, saying payments were only made to aid the initial shift changes MFI argued the tribunal should have considered all the staff in all itsfactories where disturbance payments could have been made. But the EAT held thetribunal hadn’t been ‘illogical’ to only consider the staff in the plant wherethe practice was applied. Irrespective of whether a narrow or wide pool ofworkers was taken, a disproportionate impact had been established on thefigures.