United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T PITT-PAYNE (of Counsel) instructed by MESSRS WRAGGE & CO Solicitors 55 Colmore Row Birmingham B3 2AS


 


HIS HONOUR JUDGE CLARK: This appeal raises a short point of construction of the terms of a pension deed.

The Respondent, Mr Hudson, was employed by the Appellant company, Texon, from 15 August 1955 until his dismissal by reason of redundancy effective on 12 June 1998, shortly before his 60th birthday on 10 August 1998. During his employment he joined the Appellant's employee pension scheme and was himself a trustee of that scheme.

The scheme was first established in 1987. The terms of the scheme changed from time to time. The last material change occurred on 29 January 1998. Prior to that date the rules provided that an employee who retired after reaching the age of 50 could, with the consent of the employer, have an immediate pension paid. That pension was subject to reduction by 4% for each complete year preceding the normal retirement age (65 years). However, by the so called rule of 85, that is where the aggregate of the employee's age at retirement and the number of years service with the company exceeded 85 years (as in the Respondent's case), there was no reduction.

The material alteration to the rule of 85 effected on 29 January 1998 provided as follows:

"When the Member retires from Service at the request of the Employer in circumstances where he is not dismissed the reduction mentioned in rule 57.3 will be varied as follows:

(a) if the sum of the Members age and years of Pensionable Service is at least 85 no reduction will apply".

On dismissal for redundancy the Respondent received a statutory redundancy payment and pay in lieu of notice on a gross rather than net basis. However, he was told that his immediate pension would be paid subject to the 4% annual reduction.

By an Originating Application presented on 2 September 1998 the Respondent complained of "Redundancy-pension rights. Custom and practice." That complaint related to his reduced pension payments.

The claim was resisted on the basis that upon its proper construction the Rule of 85, as altered in January 1998, did not apply in the case of dismissal.

The matter came before a Chairman, Mr J A Threlfell, sitting alone at the Leicester Employment Tribunal on 2 December 1998. By a reserved decision with extended reasons promulgated on 15 December 1998 the Chairman found in favour of the Respondent, apparently on the basis that the expression "in circumstances where he is not dismissed" in the new rule of 85 did not apply to dismissal by reason of redundancy, but only where the dismissal was by reason of some action or default on the part of the employee.

Against that decision the company now appeals. Two points are taken; first, that the use of the word "dismissed" in the new rule of 85 plainly covers dismissal by reason of redundancy. Secondly, that the proper defendants to the claim are the Trustees of the Pension Fund, not the employer, and that the Respondent's claim is not for breach of contract, but as a beneficiary under the Trust Deed, and that in these circumstances the Employment Tribunal had no jurisdiction to entertain the claim under the employment protection legislation and in particular the 1994 Order, SI 1994/1623.

Having heard the submissions of Mr Pitt-Payne we think that both points are arguable and should proceed to a full appeal hearing. We note that in his PHD form the Respondent himself accepts that the appeal raises a reasonably arguable point of law, and we agree. For the purpose of the full appeal hearing we direct that the case be listed for 3 hours, Category C. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged at the same time with this Tribunal. There is no requirement for Chairman's notes of evidence and no further directions are required.