Neither did Mr Heyes have an accrued right to Benefit 4 at the time of the 2005 Deed of Amendment, since he did not qualify to receive Benefit 4 in 2005. This meant that the amendment was not prohibited under section 67 PA 1995 and did not breach the rules of the plan.
Finally, the ombudsman found that the closure of FIFS in 2001 did not directly relate to the transfer in 2001. No evidence had been provided to demonstrate that the closure of FIFS was directly related to the transfer. In particular, there was no clear evidence that in the four years post-acquisition, ABB had clear plans to amend Benefit 4 in 2005.
This final element will be of particular interest in the context of TUPE. The decision appears to show that the passage of a number of years between the transfer and the amendment is likely to reduce the likelihood of there being a link between the two.
Danny Tsang is a partner of Simmons & Simmons