The power to Improve

Regent Security Services Limited v Power [2007] EWCA Civ 118, [2007] All ER (D) 298 (Nov) concerned the interpretation of the Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE), but has wide implications for how the rights and obligations of employees and employers upon a TUPE transfer taking place are to be construed. In particular, the decision makes clear that upon transfer an employee not only retains pre-transfer rights, but may acquire additional rights by agreement with the transferee employer. Where such additional rights are acquired, eg by consensual contractual variation, the employee thereafter has a choice of whether to rely upon the old pre-transfer contract, or new (varied) version. The decision thus represents a pro-employee stance in which the EC Acquired Rights Directive 1977/1877 (the Directive) is construed so as to give maximum choice and maximum benefit to employees who transfer under the TUPE Regulations. The transferee employer, however, may be left with an unpredictable burden.