United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N BHATTI Representative
For the Respondent	MISS ROSE MARIE BENNETT In Person


 


MR RECORDER UNDERHILL QC

1. The Respondent in this appeal, Miss Bennett, was employed in 1997 as a deputy manager at the Stanstead Childrens' Home in Catford. Her then employer was the proprietor, Mrs. Miller. With effect from 5 November 1999 the home was sold to the Appellant, United Care Homes Ltd. (to which we will refer as UCH): the Managing Director of UCH was Mr. Bhatti. Miss Bennett's employment transferred automatically to UCH under the Transfer of Undertakings (Protection of Employment) Regulations 1977.
2. It is common ground that there was in place at the moment of transfer an agreement between Mrs. Miller and Miss Bennett under which Mrs. Miller paid an agreed sum to Sun Life of Canada by way of contribution to a pension scheme for Miss Bennett: the sum due under the policy started at £60 and but it went up to £63 in November 1998 and to £67 in January 2000. It is also common ground that Mrs. Miller's obligations under the arrangement passed to UCH: the new contract of employment with which Miss Bennett was issued provided in terms that UCH would "honour the pension arrangements that were in place with your previous employer". Unfortunately Miss Bennett and Mr. Bhatti had a different understanding as to how the payments to Sun Life were to be funded. Miss Bennett claimed that the agreement had been that £30 would be borne by Mrs. Miller, with the balance being deducted from her salary. Mr. Bhatti had not at the time of the purchase been told that that was the case and believed that the entire £67 was to be deducted. When UCH made deductions on that basis Miss Bennett brought the present proceedings in the Employment Tribunal under Part II of the Employment Rights Act 1996. She also brought other claims, but they are not before this Tribunal.
3. The issue before the Employment Tribunal was thus the factual question of what the terms of the pre-transfer pension arrangement were - more specifically whether Mrs. Miller had agreed to contribute £30 per month towards the payments. In its Extended Reasons, promulgated on 14 September 2001, it held that she had, and accordingly that UCH was bound to continue the arrangement. However the reasoning is so brief as to be virtually non-existent. At paragraph 19 of the Extended Reasons the Tribunal said simply:

"We considered all the evidence relating to this arrangement with Mrs. Miller. The Tribunal was satisfied that the arrangements were honoured and that Mrs. Miller contributed £30 per month in compliance with this term, the Applicant contributing £37 per month. We find no evidence to support the Respondent's contention that it is not bound by this term."

Paras. 1 (a) and (b) of the Amended Grounds of Appeal - produced in the light of the observations of the Appeal Tribunal at the preliminary hearing - contend (in effect) that such exiguous reasons do not meet the Tribunal's obligation to explain to the parties why they have won or lost. That seems to us plainly correct.

4. It does not, however, necessarily follow that the appeal will automatically succeed. In our view - by analogy with such cases as Dobie v. Burns International Security Services (UK) Ltd. [1983] ICR 478 - if this Tribunal can supply the missing reasons with confidence (i.e. stating what they must have been, and not merely speculating) a remission is not required. In the present case we have the witness statements, the Chairman's notes in full and all the relevant documentary evidence that was before the Tribunal. In our view there is no doubt what the Tribunal's reasons were; and we would add, if this is necessary, that in our view the decision was the only decision reasonably open to it on the evidence before it. There was very clear evidence before the Tribunal to support a finding that Mrs. Miller had made the agreement alleged. Specifically:

(1) Miss Bennett in her witness statement, which stood as her evidence in chief, stated unequivocally that the arrangement was that Mrs. Miller would pay £30: see paras. 2.1-2.3. We have the Chairman's Notes of the oral evidence, which show that she maintained her position in cross-examination (see p. 2), and it is evident that the Tribunal believed her. Mrs. Miller did not give evidence.

(2) Mr. Bristow of Sun Life wrote to Mrs. Miller on 11^th January 1999 as follows:

"Just a quick note following our conversation today with regard to Rosemary Bennett's pension payments made by yourself.

Each month you pay into Rosemary's pension with ourselves the amount of £63. £33 of this amount is deducted from Rosemary's pay thus making your effective contribution £30 per month.

As you are aware this type of arrangement is used to reduce the cost of this benefit by taking advantage of the current National Insurance and Tax regulations."

(3) On 1 November 2000 Mr Crook of Sun Life wrote to Mr Bhatti about the problem, recording that Miss Bennett's understanding was that £30 per month would be contributed directly by her employer. This is of much less weight since it does no more than record a "previous consistent statement" on the part of Miss Bennett. Nevertheless it has some supportive value.

5. Mr Bhatti, who represented UCH before us with clarity and moderation, drew our attention to evidence which he said went the other way. He made the following specific points:

(1) He relied on a document issued by Sun Life dated 23.4.01 headed "Certificate of Premiums Paid" which sets out the payments made into Miss Bennett's plan from its inception onwards. As he rightly pointed out, this is confusing because it divides the payments into "Payments made by Employer" up to the end of 1999 and "Payments made by Member" from 1.1.00 onwards. The basis for this distinction is unclear, but it does not need to be resolved since it does not address the essential issue of who funded the payments.

(2) He relied on the payroll summaries provided by the firm who did Mrs. Miller's book-keeping. These are standard-form computerised reports which have a heading "pension" divided into two columns headed to record contributions by employer and employee. These columns showed no payment made in Miss Bennett's case (or indeed for any other employee). But this shows no more than that no payment was made which the firm, or its software, recognised as "pension": by itself it does not contradict the evidence of Miss Bennett or of Mr. Bristow's letter. It is not in fact UCH's own case that no pension payment was made by Mrs. Miller: the issue is where the money came from. The reason why the payments did not appear in the "pension" column may be related to the NI and tax advantages referred to by Mr. Bristow: Miss Bennett also gave evidence that she understood that the payment was being made in such a way that it 'would not show on my pay slip'. The advantages in question were not explained to us, or it appears to the Tribunal, but the fact that some such advantage was perceived by Mrs. Miller and those advising her may explain what might otherwise be a surprising omission.

(3) He relied on a letter sent to him by the solicitors acting for him on the purchase. This however states merely that none of the documentation supplied to them at the time of the purchase identified any pension contribution made by Mrs. Miller. That may be true, but it is neutral. If Mrs. Miller - deliberately or by oversight - failed to disclose an arrangement which was in fact in place, that may give UCH cause for complaint against her, but it can not affect Miss Bennett's rights. The solicitors speculated that Mr. Bristow's letter "appears to be a reference to the employer's private pension paid via the employer to take advantage of tax regulations"; but that ignores Mr. Bristow's explicit statement that Mrs. Miller was making an effective contribution of £30 per month.

None of that evidence is in any way compelling when set against the positive evidence identified in para. 4 above. Not only could the conclusion of the Tribunal not be said to be "perverse", as is submitted at para. 1 (c) of the Amended Grounds of Appeal: it seems to us the right conclusion on the evidence. The truth is that UCH had in the nature of things no evidence to set against the plain statements of two of the three parties involved in the original arrangement.

6. We should say that, with both parties' consent, we were shown copies of Miss Bennett's payslips from Mrs. Miller, which had apparently also been shown to the Tribunal although they did not appear in any bundle. These, like the payroll summaries, showed no deduction for pension; but beyond that they do not advance the argument. (Indeed the lay members - who have a good understanding of practice in this field - believe that if the correct arithmetic is done the pay-roll information positively supports Miss Bennett's case; but since this point was not argued before the Tribunal we do not think it right to rely on it here.)
7. We have no doubt whatever that the reason why the Tribunal found for the Appellant was that there was clear direct evidence before it in support of her case - not only her say-so but, crucially, the independent and contemporary letter from Mr. Bristow - and no evidence of any real weight the other way. The Tribunal had indeed little choice on the evidence presented but to find for Miss Bennett. This is not in any way to impugn Mr. Bhatti's good faith. We have no reason to doubt his statement that he had never been told about Mrs. Miller's agreement with Miss Bennett, and it did not show up on the documents which he or his solicitors saw. It is not surprising that he was unwilling to accept that that there was ever any such agreement. But in fact, on the evidence, there was; and the Appellant is bound by it.
8. For those reasons we dismiss this appeal.