England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		20th December 2002

1. MR JUSTICE NEUBERGER: The issue in this case turns on the effect of Rules, which are effectively in identical terms, of the Massey-Ferguson Works Pension Scheme ("the Works Scheme") and of the Massey-Ferguson Staff Pension Scheme ("the Staff Scheme"). In a nutshell, the issue is whether employees over 50 years of age, a) who were made involuntarily redundant, and b) who were invited to volunteer to be made redundant, are entitled to receive an immediate and undiscounted pension. Although the issue raises a short point of construction, it is not easy to resolve and the funding consequences are, I am told, substantial for the employer.
2. The Pension Schemes

The Works Scheme and the Staff Scheme have been closed to new members since 31^st March 1998, and the latter was merged into the former with effect from 31^st January 2002. The claimant, AGCO Limited, is the principal employer for the purpose of the merged scheme, and was the principal employer for the purpose of the two schemes before the merger. The merged scheme is an approved contracted-out occupational pension scheme. The trustee of the merged scheme is the first defendant, Massey-Ferguson Works Pension Trust Limited. The Works Scheme was governed by a definitive Deed and Rules, originally dated 5^th January 1987, as amended from time to time. The Staff Scheme was governed by a similar definitive Deed and Rules, dated 10^th August 1997, as amended from time to time.

3. The Rules of the Works Scheme, hereinafter the "Rules", in their present form, revised as at 7^th August 2002, deal with benefits in Part 4. Section A of that Part of the Rules is headed "Pensions on Retirement." The first Rule in this Part is Rule 13, which is headed "Retirement Pensions", and starts by providing that:

"Subject to the limitations and other provisions contained in

the Rules, every Member shall upon the happening of any one

of the following events, become entitled to pension specified

as appropriate in that event."

4. There are then three sub-rules. Rule 13(a) provides:

"On the retirement of a Member from Service at the Normal

Retirement Date [hereinafter 'NRD'] he shall be entitled to

a pension equal to the…Normal Retirement Pension [hereinafter

'NRP']…."

5. Rule 13(b) is in these terms:

"If by agreement with the Employer, a Member remains in

service and retires after the [NRD], he shall at the date of his

retirement, be entitled to the [NRP] which would have been

payable to him had he retired at the [NRD], but increased by

such amount as the Trustee….shall determine."

6. Rule 13(c) is a more extensive sub-rule and has six paragraphs. It is the centrally relevant provision for the purpose of these proceedings and it provides as follows:

"(i) If a Member, having completed five or more years of Pension-

able Service…retires from Service at any time before the [NRD]

on account of incapacity which…renders him permanently

incapable of gainful employment with the Employer…then he

shall…be entitled to an [NRP]...

"(ii) If a Member, to whom paragraph (i) above shall not apply,

retires from Service of his own free will at any time within the

period of five years prior to the [NRD], having completed at

least five years Pensionable Service, he shall…be entitled to an

[NRP] reduced by such amount as the Trustee shall determine…

having regard to the period between the actual date of retirement

and the [NRD].

"(iii) If a Member, to whom paragraphs 1 and 2 above shall not

apply, retires from Service at the request of the Employer and

after his 50^th birthday, he shall…be entitled to an [NRP]."

The remaining three paragraphs of Rule 13(c) do not bear on the issue which has to be determined.

7. Sections B and C of Part 4 of the Rules deal respectively with "Options" and "Benefits on Death" and I do not need to refer to them further. However, I should set out parts of Rule 23, which is headed "Leaving Service" and is in section D. Rule 23(a) and (b) provide:

"(a) If a Member leaves Service before the NRD without becoming entitled to a pension under Rule 13(c) he shall…be entitled to a

pension payable from the NRD of an amount equal to the NRP.

"(b) A Member who becomes entitled to a differed pension under paragraph (a) of this Rule and who, when he left Service, had

completed five or more years' Pensionable Service, may…if he is

within five years of the NRD…apply by notice in writing to the

Trustee to receive in lieu of such deferred pension an immediate

pension of an equivalent amount reduced…on a basis certified…

as reasonable."

8. Section E of Part 4 of the Rules deals with "Frozen Benefits", and I do not need to set it out. I must, however, mention Rule 25, which is in section F and is concerned with "Augmentation." Rule 25(a) is in these terms:

"At the request and with the consent of the Employer, the

Trustee may, subject to…to the payment by the Employer

to the Fund, such additional contribution…as the Trustee

may determine…augment any benefit to or in respect of a

Member or Pensioner or any other beneficiary under the

Rules on such terms as the Trustee may decide…"

9. Rule 4 in Part 1 of the Rules is concerned with definitions: 'Member' means a person who is or has been employed by various companies in the Massey-Ferguson Holdings Group. 'NRD' is defined as 65 years in the case of men and 60 years in the case of women. But that distinction is of course no longer effective. 'NRP' is defined as a "Final Earnings Pension" which in turn is defined by reference to a fraction of the "Member's Final Pensionable Earnings" for each year of service.
10. Two other definitions deserve mention. First, 'Pensioner' is defined as:

"A person who has retired from or left or is deemed to have

retired from or left Service and is entitled to a pension, whether

immediate or deferred under Part 4 of the Rules…."

Secondly:

"Final Pensionable Earnings" is defined as meaning "In relation

to a Member at the [NRD] or the earlier date of retirement from

or leaving Service or death, the highest annual average of his

pensionable earnings during any three consecutive such years

within ten years ending on…the NRD."

11. I was not taken to the Staff Rules, but the parties are agreed that, while there are some differences between the two sets of Rules, those differences are immaterial for present purposes. For the record, I should mention that Rule 14 of the Staff Scheme is, as I understand it, the equivalent of Rule 13 of the Works Scheme.
12. The issues

The claimant operates the Banner Lane tractor manufacturing plant in Coventry, where it employs 1,305 people. All of these employees are members of the merged Scheme, 448 were formerly members of the Staff Scheme, the remainder being former members of the Works Scheme. In June 2002, the claimant announced that it was to close the plant in two stages, which inevitably would involve many of the employees at the plant being made redundant. There have been negotiations between representatives of the claimant and representatives of the employees, including the Transport and General Workers Union and AMICUS.

13. As a result of those negotiations, there are two classes of employee who will, unfortunately, be laid off. First, there is a larger class consisting of those employees who are to be made compulsorily redundant. They are to be dismissed from employment. Secondly, there is a class of employee from whom the claimant will be seeking volunteers for redundancy. The claimant will be seeking to render only a proportion of the employees in this class redundant, but will be doing so, at least initially, by asking for volunteers to put themselves forward for dismissal.
14. The issue which has to be determined is, whether an employee at the plant who is made redundant, pursuant to these arrangements after his 50^th birthday, can claim an undiscounted NRP forthwith, pursuant to Rule 13(c)(iii). Through Mr Nicholas Warren QC and Mr Michael Tennett, the claimant contends that an employee at the plant who is made redundant, whether he falls within the first class or the second class, cannot bring himself within Rule 13(c)(iii). Mr Michael Furness QC, who appears with Miss Joanna Smith, contends on behalf of such employees, ("the defendants") that they would fall within Rule 13(c)(iii), provided of course, that they are aged over 50.
15. I propose to consider the issue first by reference to the majority of the employees affected by these proceedings, namely those falling within the first class, that is employees over 50 years of age who are being dismissed wholly and involuntarily. The central issue is whether such an employee can be said, by virtue of his dismissal, to be a person who, "retires from service at the request of the Employer" within Rule 13(c)(iii). The issue is one of construction and it therefore involves determining the meaning of Rule 13(c)(iii) in its context. Accordingly, the resolution of the rights of these employees in the first class will go a long way towards resolving the rights of those in the second class.
16. The issue concerns the construction of the Rules of a pension scheme, and I bear in mind the following principles. First:

"There are no special rules of construction applicable to a pension scheme…its provision should, wherever possible, be construed to

give reasonable and practical effect to the scheme,"

- See per Millett J In re Courage Pension Schemes [1987] 1WLR, 495 at 505.

Secondly, if one is concerned with construing particular words in a pension scheme, they should, if possible, be given their ordinary and natural meaning, bearing in mind their context. Thirdly, the scheme should be construed as a whole with a view, if possible, to producing a practical and sensible result. Fourthly, the purpose and effect should be gathered from the words used, rather than invoking a preconceived notion as to what the words should mean and then bending the words to fit that meaning - see for instance per Saville J in The Sea Queen [1988] 1LR, 500 at 502. Fifthly, a decision as to the meaning of a word or phrase in another pension scheme may be of assistance when one is construing the same word or phrase in a different scheme, but only insofar as the case may throw light on the natural meaning of the word or phrase. Otherwise, invoking judicial decisions on question of construction can be positively misleading, because a meaning of a particular word or phrase is inevitably governed, often to a very substantial extent, by its context.

17. The claimant's case is that Rule 13(c)(iii) is limited to cases where the employer approaches an employee with a request that the employee voluntarily resigns and the employee then does so, and where the circumstances are such that the employee is entirely free to resign or not to resign. In other words, the claimant says that "retires" refers to a cesser of employment at the election of the employee, and that the "request" involves no pressure and no express or implied threat on the part of the employer, so that the resignation of the employee is wholly voluntary. The defendants argue that Rule 13(c)(iii) would not apply in such a case. The defendants' contention is that Rule applies where the employee is over 50 and ceases his employment as a result of some degree of coercion on the part of the employer, including, in particular, a case where the employer simply dismisses the employee. Otherwise, the defendants contend that the retirement would be voluntary and therefore taken out of Rule 13(c)(iii) by Rule 13(c)(ii).
18. The claimant's case on straightforward dismissals

The claimant contends that, as a matter of ordinary language, an employee who is involuntarily dismissed by his employer cannot be said to be a person who, "retires from service at the request of his employer." As Mr Warren says, that expression has to be construed as a whole. He argues that, insofar as a person who is dismissed can be said to be in retirement, he cannot fairly be described as a person who "retires." He is more a person who is "retired", whether as an adjective or in the sense of being "retired" by his employer. In the context of Rule 13(c)(iii), Mr Warren argues that that point is reinforced by the retirement being "at the request" of the employer.

19. To support his argument as to the ordinary meaning of "retires", Mr Warren refers to the judgment Brightman J, in Young v Associated Newspapers Limited [1971] 11 Knights Industrial Reports, 413 at 423, where he said:

"The expression 'a member retiring' had it appeared on its own,

would in my view have prima facie excluded a case where the

employee is dismissed…This is all the more so where it is coupled

with the words 'with the consent of the company' because a person

cannot in any meaningful sense be said to consent to his own act.

He can only consent to the act of another."

A similar view was taken of the words "if a member retires" by Mr Julian Jeffs QC in Dorrell v May & Baker [1991] Pension LR 31 - see paragraph 28.

20. So far as the words "at the request of" are concerned, Mr Warren contends that it is normally implicit in the concept of request that the person to whom the request is directed is being asked to do something, and that, at least usually, he is free to decide whether to accede to or to refuse the request. He also argues that the natural meaning of the word "request" is reinforced when one finds it in the phrase, "retires from service at the request of the employer." The claimant's construction thus involves the contention that an employee is not "requested" to retire if any pressure to do so is put on him by the employer.
21. Looking at the provisions of the Rules more widely, Mr Warren draws attention to the distinction between references to a member who "retires", on the one hand, and a member who undergoes a "retirement" or "[leaves] Service", on the other hand. Thus in the definition of "Pensioner" and "Final Pensionable Earnings", the Rules distinguish between "retired" and "retirement", on the one hand, and "left service" and "leaving service", on the other hand. In this connection, the claimant's argument is that it is more natural to describe a dismissed employee as "leaving service", the expression which is to be found in Rule 23, rather than "retiring", the expression which is to be found, either in noun form or in different verb tenses and moods, in Rule 13. That would tend to indicate that it is more likely that an employee who is dismissed falls within Rule 23 than within Rule 13. Even if some employees who are dismissed may fall within Rule 13, it is easier to describe a dismissed employee as being in "retirement", rather than a person who "retires", and it is the word "retires" which is the word used in Rule 13(c)(iii).
22. Finally, Mr Warren points to an anomaly, which he contends results from the conclusion that Rule 13(c)(iii) applies in a case where the employee is dismissed. If the Rule applies to any case where an employee is dismissed, provided the employee is aged over 50, then it would apply to a case where an employee is dismissed for good reason, and, runs the argument, that would even be the case where the employee's misconduct was so serious that it involved a repudiatory breach of his contract of employment. It would be a surprising result if an employee who was dismissed for misconduct, particularly of the grossest kind, was entitled to an immediate undiscounted NRP, even though he had not reached the normal age of retirement, provided only that he was aged over 50 at the time of his dismissal. Indeed, an employee aged over 50 who wished to resign might be encouraged to perform his functions incompetently with a view to being dismissed so as to bring himself within Rule 13(c)(iii).
23. Discussion on the main issue: simple dismissal

These arguments have force and were persuasively advanced by Mr Warren. However, I have reached the conclusion that Rule 13(c)(iii) has the meaning for which the defendants contend, and that, therefore, an employee aged over 50 who is dismissed by the employer is entitled to an immediate undiscounted NRP. My reasons are as follows.

24. First, it appears to me that it is not a misuse of language, indeed, it is a perfectly proper use of language, to describe an employee who is dismissed, as someone who, "retires from Service at the request of the Employer." To say that an employee, particularly if is he aged over 50 at the time, retires when he is dismissed is, to my mind, not an unnatural use of the word. As Mr Warren himself concedes, one can refer to a person as being "retired" by his employer if is he dismissed. While I accept that it does not necessarily follow automatically, it tends to suggest that it would not be wrong to say that he "retires" if he is so dismissed. In other words, while I accept that a statement to the effect that an employee "retires" could be limited by its context to a voluntary act of an employee – i.e. a case of resignation, it could equally well, by virtue of its context, extend to a case of dismissal or other non-voluntary leaving of service.
25. Secondly, it seems to me that, while the word "request" could by its context be limited to a case where the person to whom the request was made is entirely free to accede to it or to reject it, the context may demonstrate that it is intended to extend to a case where the request is to be complied with. A bus driver should stop if "requested" to do so at a request stop. An owner of land who "requests" a trespasser or licensee to vacate is effectively requiring him to vacate. Indeed the notion that there can be no retirement by "request" in this Rule 13(c)(iii), if the request is accompanied by any pressure at all, appears to me to impose an unnaturally limited meaning on the word.
26. So far as judicial observations on the meaning of "retires" are concerned, I do not think they take the present issue any further. The observations must be read in their context, and anyway they merely show that "retires" can have a wide or a narrow meaning, i.e. that it can include or may not include dismissal, depending on its context. The view of Brightman J in Young was influenced by the reference to "consent" in the clause he had to consider. In Harris v Shuttleworth [1994] Pension LR, 47, Glidewell LJ, with whom Evans and Waite LJ agreed, held that a provision in the Rules of a pension scheme providing for a pension payable in the case of, "the retirement from the service of a member….by reason of incapacity" (see paragraph 27) applied irrespective of, "how the employment is terminated." He continued in paragraph 75:

"In my judgment, where the employee [gives notice of her

intention of leave] or the employer [gives notice dismissing

her], the termination can still properly be described as retirement

from service by reason of incapacity."

27. Of course, quite apart from being concerned with the meaning of a provision in the Rules of a different pension scheme from that under consideration, that case was concerned with the noun "retirement", rather than with the verb "retires." However, I believe that at its very lowest, that case provides a good example of how words such as "retires" or "retirement" can extend to a case of dismissal if its context so requires or indicates.
28. It is true that it is held by Mr Jeffs in Dorrell that the words, "if a member retires" did not apply to a case where the member was dismissed. However, I do not think that takes the issue further. First, in paragraph 43 of his judgment, Mr Jeffs said this in relation to the meaning of a word such as "retires":

"It is quite clear from the passages I have read that no firm rule

has been laid down. Every deed must be construed as a whole

to ascertain its full meaning."

29. Secondly, in reaching his conclusion, Mr Jeffs said in the same paragraph that he, "gained a lot of assistance" from an unreported decision of the Court of Appeal, Brooks v National Westminster Bank Limited [8^th November 1983] 1983 CA Transcript, 464. However, I have considerable doubt as to whether it was appropriate to give that decision any weight in light of what was subsequently said by Glidewell LJ in Harris at paragraphs 76-80. In those paragraphs, he explained that the decision in Brooks was arrived at in the light of two specific rules in the pension scheme there under consideration, which had no parallel in the rules being considered in Harris or indeed in the rules in the present case. He therefore concluded that, "In Brooks…the court was answering a different question in a different context."
30. In the Rules in the present case, it seems to me tolerably clear that the word "retires" is used in two places in the Rule 13 itself to include a dismissal. Rule 13(c)(i) entitles a member to an immediate pension if he "retires from Service ….on account of incapacity", provided that he has completed more than five years service. It appears to me to be clear this must include a case where, following and as a result of incapacity, the member is dismissed from service. Apart from the fact that that is clear as a matter of construction and common sense, it would seem to follow in any event from the decision in Harris. Mr Warren suggests that the word "retires" in Rule 13(c)(i) might not in fact include dismissal, but that dismissal for incapacity would effectively be included in Rule 13(c)(i) by implication. I reject that suggestion. It involves giving the word "retires" a narrow meaning, which I accept it can bear if the context requires, rather than a wide meaning, which it can equally well bear if the context requires, and then, because the narrow meaning produces an unacceptable result, implying a further type of case where the Rule will apply. That seems to me to be quite wrong when one can achieve the same result simply by giving the word "retires" its equally natural, but wider, meaning.
31. Further, the word "retires" in Rule 13(b) appears to include dismissal. An employee who remains in employment beyond his NRD and is thereafter dismissed from employment could not claim a pension under Rule 13(a) because he will not have retired at the NRD. He plainly cannot claim a pension under Rule 13(c) because he will not have retired before the NRD, and there is no question of his falling within Rule 23. In those circumstances, it must follow that such an employee is someone who, "retires after the NRD" within Rule 13(b).
32. Accordingly, rather contrary to the claimant's case, there are two specific provisions in Rule 13 itself, namely Rule 13(b) and 13(c)(1), where it seems to me clear that the reference to an employee who retires includes an employee who is dismissed by the employer. Therefore, to put it at its lowest, there is nothing linguistically surprising in the context of this scheme, if one construes the reference to, "a member who retires from service" in Rule 13(c)(iii) as including a member who is dismissed by the employer. The point is reinforced by the fact that "retirement" in Rule 13(a) appears to include dismissal, and by the fact that nowhere else in Rule 13 can it be said that "retire", in any noun or verb form, excludes dismissal.
33. For what it is worth, I consider that there is some force in the contention advanced by Mr Furness, to the effect that the noun "retirement" and the verb "retires" in the various tenses and moods are used in the Rules to denote leaving service in circumstances where there is an immediate entitlement, as if right, to a pension; whereas a reference to leaving service carries with it no immediate right, albeit that there might be a deferred right to receive a pension. In this connection, the verb or noun, "retire" or "retirement", is used throughout Rule 13, and in each case it is referring to someone who is leaving service in circumstances in which there is an immediate right to a pension. On the other hand, Rule 23, which refers to an employee leaving service rather than retiring, is concerned with cases where there is a deferred right to a pension, although there may be a right to an accelerated, if discounted, pension under Rule 23(b). Viewed in that context, there is no reason to construe the reference to "retiring" in Rule 13, irrespective of the part of speech or mood or tense of verb, as being limited to a case of resignation, except of course when it is qualified by words such as "of his own free will" in Rule 13(c)(ii).
34. Indeed, the provisions of Rule 13(c)(ii) themselves support the view that "retires", as used in the Rules, includes dismissal. If it does not, then the words "of his own free will" if one gives them their natural meaning are otiose in Rule 13(c)(ii). As a matter of language, a retirement which is not of the employee's own free will would be a dismissal. Again, authorities (particularly as they are in a statutory context) are of limited assistance but cases such as Caledonian Mining Company Limited v Bassett & Steel [1987] Industrial Relation LR, 165 seems to support that proposition - see at paragraphs 26-29. (See also Sheffield v Oxford Control Company Limited [1979] Industrial Relation LR, 133 at paragraphs 8-13 and 20)
35. A significant pointer against the construction placed on 13(c)(iii) by the claimant is to be found in the opening words of that paragraph, namely, "If a member to whom paragraphs 1 and 2 above shall not apply." As Mr Furness points out, those words indicate, that if an employee falls within Rule 13(c)(ii) and within Rule 13(c)(iii) - ignoring those opening words - then he will be treated as falling with the former Rule and not within the latter Rule. At least on the face of it, this presents the claimant's construction of Rule 13(c)(iii) with a serious problem. As I have explained, Mr Warren's contention is that an employee only falls within Rule 13(c)(iii) if he voluntarily resigns after a request from the employer to do so, albeit that the request must be one without any threat. In those circumstances, it would seem to follow at least at first sight, that on the claimant's construction any employee who falls within the words of Rule 13(c)(iii), at least if he is within five years of NRD, and has completed at least five years service, fall within Rule 13(c)(ii) because he will have retired "of his own free will." It would be absurd if an employee fell within Rule 13(c)(iii) if he had completed less than five years service and/or had more than five years to go before his NRD and could therefore receive an immediate undiscounted NRP, but if he had completed more than five years service and was within five years of his NRD, he could only get a reduced pension under Rule 13(c)(ii). Indeed, Mr Warren does not suggest that such a perverse construction could be correct.
36. What Mr Warren argues, is that the words "of his own free will" in Rule 13(c)(ii) must, in these circumstances, be given a somewhat different meaning from that which, at least at first sight, they naturally bear. He says that they should be construed as meaning 'of his own initiative.' In other words, he contends that reading Rules 13(c)(ii) and (iii) together, the result is as follows. The latter Rule applies to a voluntary resignation by an employee where that resignation is initiated by a request from the employer; whereas the former rule applies to a case of voluntary resignation which is initiated by the employee. I do not think that that construction involves giving the words "of his own free will" their natural meaning. One can take an action of one's own free will as a matter of ordinary language, even where one is prompted or asked to take that action in the first place by another person. The fact that the claimant's construction of Rule 13(c)(iii) involves giving an expression in another part of the same Rule an unnatural meaning, is to my mind a substantial indicator that that construction is not correct. The defendants' construction of Rule 13(c)(iii), by contrast, faces no such problem.
37. Even on the basis that the words "on his own free will" in Rule 13(c)(ii) mean "of his own initiative", it appears to me that the claimant's construction runs into difficulties in relation to the opening words of Rule 13(c)(iii). On the claimant's construction of the two provisions, there would be no need to refer to paragraph (ii) in the opening words of Rule 13(c)(iii), because an employee who otherwise fell within paragraph (iii) could never fall within paragraph (ii), because he would never have retired "of his own free will" as those words are interpreted by the claimant. On the claimant's case, if an employee, "retires from Service at the request of the Employer" he could never be someone who "retires from Service of his own free will." There would therefore have been no need, on the claimant's case, to have included any reference to paragraph (ii) in the opening words of Rule 13(c)(iii), because there never could be a case falling within 13(c)(iii) to which paragraph (ii) applied.
38. Over and above this, it is not entirely easy to see what function Rule 13(c)(iii) performs if it has the meaning for which the claimant contends. On the claimant's construction, if the employer wished an employee to retire early, then Rule 13(c)(iii) would enable the employer to encourage such an early retirement by approaching the employee with a request that he retires voluntarily, as a result of which he would be entitled to an immediate undiscounted NRP. However, in practice, it appears to me that such an arrangement could be achieved under the Rules by the employer without the need to invoke Rule 13(c)(iii). The employer could simply induce the employee in question to resign, or to volunteer for redundancy or dismissal, on the basis of promising him an immediate undiscounted NRP by invoking the augmentation provisions contained in Rule 25(a). It is true that the augmentation provisions could only be invoked with the consent of the Trustee, but it is hard to see on what basis such consent could be rationally refused, provided of course there were sufficient assets in the fund. However, if there were not sufficient assets, one imagines the employer would be unlikely to invoke Rule 26 or Rule 13(c)(iii) anyway. In other words, on the claimant's construction, Rule 13(c)(iii) seems to have very little function in practice.
39. Each construction can lead to difficult questions in certain circumstances. Thus, the second class of redundancies in the present case is not easy to characterise on the defendants' construction. Equally, it may be difficult to determine in many circumstances who can be said to have initiated a voluntary dismissal on the claimant's construction. Such difficulties throw no light, in my view, on the issue between the parties, because they arise from the words "of his own free will" in Rule 13(c)(ii). Such difficulties arise whether those words are given their natural meaning (on the defendants' case) or a somewhat unnatural meaning (on the claimant's case).
40. However, the claimant's construction of Rule 13(c)(iii) could lead to arguments as to whether a retirement following a request from the employer was genuinely voluntary. Thus, a bare request from an employer to an employee, 'will you please retire' could well be said to carry with it the implication that if the request is not complied with, a dismissal would follow.
41. However, a peculiarity about the claimant's construction is that Rule 13(c)(iii) would not apply to an employee who volunteers to be dismissed at the request of the employer, only to an employee who resigns at the request of the employer. It seems to me somewhat odd, that, if it has the meaning the claimant contends for, Rule 13(c)(iii) could not be invoked in a case where the employer might want to enable the employee to receive a redundancy payment in addition to an immediate undiscounted NRP. It is also hard to see why an employee who resigns pursuant to a request, without any pressure, should have a right to an immediate undiscounted NRP, whereas, if there had been any pressure to resign, there would be no such right. Yet that is the effect of the claimant's case.
42. Subject to one point then, I consider that the defendants' construction of Rule 13(c)(iii), to the effect that it applies to any employee aged over 50 who is made redundant or is otherwise dismissed by the employer, is to be preferred. If this was a perverse or even a somewhat surprising result, then it would of course require to be reconsidered, because, like any other document with commercial or financial implications, the Rules of a pension fund must, if possible, be construed so as to provide a consistent commercially sensible and practical result. Subject to one point, it seems to me that the defendants' construction achieves such a result. The fact that it produces a more expensive, possibly a much more expensive, outcome for the employer than the claimant's construction, does not appear to me to call that conclusion into question. There may come a point where a particular construction is so disproportionately expensive to an employer that one must reconsider it, but Mr Warren does not suggest that that would be appropriate in the present case if the defendants' construction is otherwise correct.
43. In this connection, it should be mentioned that I recognise that the interests of all the employees do not coincide. Indeed, as Mr Warren emphasises, the interests of many, quite possibly most of the members of the merged fund, once the same as that of the claimant, rather than the defendants, in the present case. The greater the number of ex-employees who fall within Rule 13(c)(iii), the higher the liability of the merged fund to dismiss employees and correspondingly, the less there is available in the fund for other employees. Be that as it may, subject to the point to which I now turn, the argument supporting the defendants' construction of the Rule appears to me to be more convincing than those propounded by the claimant.
44. The anomaly in the defendants' construction

The fact remains that the defendants' construction can be said to produce the anomalous result that, where an employee aged over 50 is dismissed for misconduct, particularly where the misconduct is so significant as to amount to a repudiatory breach, he is entitled to an immediate undiscounted pension. Mr Furness argues that this result might be avoided, even on the defendants' construction, at least where the employee's conduct was such as to amount to a repudiatory breach, because it is the breach which determines the employment, not the employer. Attractive though such a conclusion may be, I do not find it persuasive. A repudiatory breach does not of itself determine a contract. It is the acceptance of the repudiatory breach by the innocent party, in this case the employer, which terminates the contract, in this case by dismissing the employee. Further, as Mr Furness accepts, his argument could not apply to a case where the dismissal of the employee was caused by misconduct on the part of the employee which was not repudiatory.

45. It is conceivable that the court might be prepared to imply a term into Rule 13(c)(iii), to the effect that it would not apply where the dismissal arose from the misconduct of the employee, particularly where the misconduct amounted to a repudiatory breach. I leave that point open because it is not strictly necessary to determine it. However, assuming, as may very well be the case, that such a term cannot be implied, while I would accept that the defendants' construction would give rise to an anomaly where an employee aged over 50 is dismissed for misconduct, it is not a sufficient anomaly to persuade me that the defendants' construction should be rejected and that of the claimant adopted, in light of the other factors which I have mentioned.
46. The fact that a particular construction can give rise to an anomaly must cause one to reconsider its correctness. In this case, the anomaly could only arise in certain specific circumstances and could have resulted from an oversight on the part of the draftsman. Bearing in mind the factors which have persuaded me that the defendants' case is correct, I think it would accord the anomaly undue weight if it led to my adopting the claimant's construction. It would be letting the tail wag the dog.
47. In summary terms, the points which persuade me of the correctness of the defendants' construction are:

(1) It accords with the natural meaning of Rule 13(c)(iii), although it is fair to say that the claimant's construction does so as well, subject to point (3);

(2) Unlike the claimant's construction, it gives the word "retires" a constant meaning throughout Rule 13 – see Rules 13(b) and 13(c)(i) in particular;

(3) It does not give the artificially limited meaning to the word "request", which, as the claimant's construction, does not cover a case where the employer's request is accompanied by any pressure;

(4) Unlike the claimant's construction, it gives effect to the reference to paragraph (ii) in the opening words of Rule 13(c)(iii);

(5) Unlike the claimant's construction, it does not involve giving an unnatural meaning to the expression "of his own free will" in Rule 13(c)(iii);

(6) It gives Rule 13(c)(iii) a practical effect, whereas, in light of Rule 25 (and indeed in light of the very limited meaning it gives to the word "request") the claimant's construction does not seem to me to do so;

(7) The claimant's construction results in a degree of anomaly – thus Rule 13(c)(iii) could only apply on a resignation and not a dismissal requested by the employee, and Rule 13(c)(iii) cannot apply once there is any pressure on the employee to resign.

48. The fifth and seventh points highlight another way in which the oddity of the claimant's construction can be characterised. Reading Rules 13(c)(ii) and 13(c)(iii) together, one notes that the latter is subject to the former, and that the former only applies where the retirement is of the employee's "own free will." Accordingly, if one was concerned with a case involving a possible degree of coercion by the employer, one would have expected Rule 13(c)(ii) to apply if there was no coercion and, therefore, Rule 13(c)(iii) to apply if there was coercion. Yet the claimant's construction provides precisely the opposite result.
49. I return to the anomaly which arises from the defendants' construction. It could only occur where an employee who retires is dismissed on the grounds of his misconduct and is aged over 50. Further, insofar as his misconduct has caused the employer damage, the employer will be entitled to a charge over any pension payable to the employee in respect of any damage suffered by the employer as a result of misconduct. I also draw comfort from the facts of this case. They tend to suggest that the anomaly will not commonly occur. Of around 1,000 proposed dismissals at the plant, not a single one appears to involve misconduct by an employee.
50. Further, I note that in Young at 11 Knight's Industrial Reports, 423-4, Brightman J discussed not dissimilar anomalies. The claimant can derive some comfort from the fact that he drew support for the construction he had adopted, from the fact that the contrary construction would have involved, "the most delinquent employee [being] entitled to the same reward…as the most loyal employee." However, he also stated that he did, "not think that the plain meaning of the early retirement clause can be displaced by a reference to a supposed anomaly", which, he went on to say, the employer, "may wish to remedy under its powers to alter the rules."
51. It is not, I think, helpful to decide whether the anomaly resulting from the defendants' construction is greater than those resulting from that of the claimant. The nature of the anomalies is rather different, and determining issues of construction by reference to anomaly is by no means always a safe approach. Even assuming, as may well be right, that the anomaly resulting from the defendants' construction is more stark, that would not be enough, in my view, to justify adopting the claimant's construction and rejecting the defendants' construction, given the various points favouring the latter, as I have summarised them. In the event therefore, I conclude that Rule 13(c)(iii) extends to any employee over 50 and made redundant or is otherwise dismissed or laid off by the employer, albeit that I leave open the question of whether it could be relied on by any employee who is dismissed for misconduct.
52. The second issue: Volunteers for redundancy

I now turn to consider whether the same conclusion applies to those employees aged over 50 who are in a class of employees from whom volunteers for redundancy have been sought by the claimant. As I see it, were it not for the provisions of Rule 13(c)(ii) such employees would fall within Rule 13(c)(iii), because each of them would fairly be a person who, "retires from Service at the request of the Employer", in light of the way I have construed that expression. The question however, is whether such an employee is taken out of Rule 13(c)(iii) because of the opening words thereof, being a person falling with Rule 13(c)(ii), that is an employee who, "retires from Service of his own free will." In this connection, given my preference for the defendants' construction of Rule 13(c)(ii) and (iii), the mere fact that the employer would have initiated the retirement by asking or encouraging the employee concerned to volunteer to be made redundant, it is not at least necessarily decisive. As I have said, the fact that it is the employer who initiates the procedure, does not, as a matter of ordinary language prevent the employee's retirement being "of his own free will."

53. Nonetheless, on the facts as they have been presented in the present case, I consider that those employees who will have volunteered to be made redundant on the basis that they are members of a class of employees from whom the claimant has sought volunteers through redundancy, would not fall within Rule 13(c)(ii) and would therefore fall within Rule 13(c)(iii).
54. First and most importantly, the "request" from the claimant for volunteers appears to me to have been based on the understanding and assumption that, if insufficient employees from the relevant class volunteer for redundancy, some further employees from the class will have to be made involuntarily redundant by the claimant. Secondly, the claimant is not asking the volunteering employees to resign from service, they are being asked to put themselves forward in order to be made redundant, i.e. to be dismissed by the claimant as their employer. Thirdly, there is no guarantee that a volunteer for redundancy will, in fact, be laid off by the employer; it remain a matter for the claimant.
55. Bearing in mind those three factors, I do not consider that as a matter of ordinary language, it can be fairly said that an employee who volunteers for redundancy is retiring "of his own free will", as opposed to "retiring at the request of the Employer." In this connection, I think the concept of free will, at least in Rule 13(c)(ii), carries with it the absence of any significant pressure from the employer, particularly where the pressure involves a threat of involuntary dismissal. Furthermore, I believe that the use of the word "request" in Rule 13(c)(iii), whilst it extends to a requirement, as I have mentioned, is equally able to extend to a situation where the employer requiring a specific number of redundancies from the group of employees without identifying precisely which employees are to be laid off.
56. Mr Warren is right to say that a specific employee, volunteering for redundancy in the instant case, may not be one of those who is to be dismissed if there are insufficient volunteers. However, he must be aware of the obvious risk of his being "pushed" if he does not "jump", as Mr Furness put it.
57. Conclusion

Accordingly, my conclusion is that all those employees who are to be made redundant in either of the two classes with which these proceedings are concerned, will be entitled to an immediate and undiscounted NRP, provided of course they are aged 50 or more at the time that they are made redundant.

__________________________