United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARCUS PILGERSTORFER (of Counsel) Instructed by: Messrs Dean Wilson Laing Solicitors 96 Church Street Brighton East Sussex BN1 1UJ
For the Respondent	MR CHRISTOPHER CAMP (of Counsel) Instructed by: Messrs William Graham Law Ltd Solicitors 24 Neptune Court Ocean Way Cardiff CF24 5PJ


 


SUMMARY

Contract of Employment – Implied term/Variation/Construction of term

This part time worker's pension case was dismissed as to sex discrimination and equal pay by the Employment Tribunal. But a Scally contract claim, that the Respondent should have told the Claimant about a discretionary scheme for buying lost years in the Teachers' Pension Scheme, is remitted to the same Employment Tribunal Chairman to determine.


 


HIS HONOUR JUDGE McMULLEN QC

1. I will refer to the parties: Professor Domed as the Claimant and the University of Brighton as the Respondent. This case began as an equal pay case on the lines well travelled by Ms Preston in her longstanding litigation, attracting judgments of the House of Lords, European Court of Justice and myself; see Preston No.3.[2004] ICR 993. That aspect of Professor Dombey's case was disposed of and there is no appeal against the adverse ruling. The auxiliary claim was for breach of contract, again along well travelled lines set out by the House of Lords in Scally v Southern Health and Social Services Board [1991] ICR 770, to do with the implied duty of an employer to inform an employee of employment benefits of the relationship.

Introduction

2. It is an appeal by the Claimant in those proceedings against a reserved judgment of Mr D N Cowling, Chairman, sitting alone at Brighton, registered with reasons on 11 January 2007. The Claimant represented herself although I know she had some assistance from her husband, also Professor Dombey. The Respondent University was represented by counsel and today the parties are represented respectively by Mr Marcus Pilgerstorfer and Mr Christopher Camp of Counsel. The Secretary of State plays no part in this, the running being done by the University, the Claimant's employer.
3. The Claimant's case was rejected by the Tribunal Chairman. She appealed. At a preliminary hearing I ordered the matter to be heard with representation at a full hearing today.

The facts

4. Professor Dombey has a lifetime of service, during much of which she was in the Teachers' Pension Scheme (TPS). During two parts of her career, which I will describe as 1972 to 1979 although they are two separate periods, the Claimant was in part-time employment but was not in the TPS. The Claimant ultimately joined and was in it until her retirement in 2004. She presented the claim for equal pay in May 2002 and for breach of contract, the subject of the present appeal, on 16 August 2004.
5. The Respondent operates a scheme which Mr Camp accepts, in broad terms and without my making positive findings about it, entitles a pensionable employee who has lost years by non-contribution or non-membership to the TPS, to buy into it. It is called "PAY" an acronym for past added years. The user-friendly document issued by the TPS is headed "Buying Past Added Years". It is based, I am told, on a sequence of statutory regulations made initially in 1976 and revised more or less yearly thereafter. Subject to eligibility, discretion will be exercised to allow people to buy back into the pension scheme in respect of the lost years. Up to 30 can be so bought. The benefit is obvious. The consequence of this discretion impacts upon the employer and the employee. For the purposes of showing what this claim is worth, if discretion is exercised in Professor Dombey's favour, she will pay £12,000 and the employers will pay £24,000 and thus enhance her pensionable service by a further 6 years.
6. The Claimant brought her claim. She was originally assisted by solicitors but at the Tribunal itself was unrepresented. The Chairman looked at what has been described as the primary case, that she was not a member of the TPS during those years and was not allowed into it. That claim was rejected. He ruled that it was out of time, in accordance with the contract jurisdiction set out for Employment Tribunals in the Extension of Jurisdiction Order 1994 and s.3(2) of the Employment Tribunals Act 1996. There is a three-month period for making such a claim. The Chairman considered the Limitation Act. Under it, the claim asserting that payments should have been made during the 1970's was well out of time, although a good deal of the argument originally advanced and set out in skeleton argument by Mr Pilgerstorfer today focused on that. It is conceded that that point cannot be made.
7. What remains, however, is a claim based upon Scally that there was in the contractual relationship an implied term that the employer would inform the employee of the existence of the PAY scheme and of her right to apply under it. It is accepted by Mr Camp that several formulations of the Claimant's case were before the Chairman. Some criticism is made of the protean developments of the claim. The Chairman has not dealt expressly with that claim, for good reason Mr Camp says, because that claim was not fully before him. Mr Pilgerstorfer, relying on Scally, says that there is in law such an implied term and the obligation here is to inform and to make payments according to discretion once triggered. As far as I can tell, there have been more then three formulations of Professor Dombey's entitlement. The question is whether or not a claim was made to the Employment Tribunal, whether it was dealt with and if not what should happen on appeal.

Discussion and conclusions

8. It is helpful for Mr Pilgerstorfer to have made the concession because it gets out of the way one point which was, in my judgment, sensibly conceded. What remains is the plea by the Claimant that there was a continuous obligation by the employer to let her know that there was a discretionary scheme known as PAY so that she might take advantage of it.
9. I do not accept that a Scally claim exists for the Respondent to actually make the payments. From the brief overview I have had of these regulations, through the PAY document, and through its earliest incarnation which is 1970, the discretion is exercised and payments are made. But that substantive right is very different from attaching to it the procedural Scally claim, which is to be informed. The reach of Scally is that where a valuable benefit exists in the employment relationship, an employer is under a duty to make that known. It is under a particular duty where it is limited in time, as it was in Scally. The claim here is that while the Claimant was engaged by the Respondent up to 2004, the PAY scheme existed, it provided a valuable benefit if discretion is exercised, and she was not notified about it.
10. For the purposes of the appeal against the PHR, I am satisfied that that claim was before the Employment Tribunal and is before me on appeal. The suggestion that I could dismiss the appeal and leave at large the Scally point is unattractive. The proper approach is that the Chairman should have considered, however inelegantly it was formed, that the gist of the Claimant's case was that at all times the Respondent was under a duty to let her know of PAY and that if it had done so then she would have applied, the Respondent would have considered the application and would have acted upon it. Again let us suppose that it would have found her to have met the eligibility criteria and it would have made the payments by way of lump sum and required her to do so at the same time. There are no findings about that, nor is there a finding about whether the obligation was discharged by the Respondent in 2002, when it wrote to her drawing attention to her pension rights.
11. The correct analysis of this case is that the Tribunal Chairman has not considered what is at the heart of the case. To be realistic, this is a money claim in the form of an implied right to be told of the opportunity to seek discretion. The circumstances in which the money will be paid by way of damages have yet to be investigated, so has the breach, in the first place. The documents necessary for a determination of the rights need to be placed before the Chairman.
12. It seems to me that there was an error by the Chairman in failing to consider this aspect of the case. He is not to be criticised for that because the claim was not so pointedly made by the Claimant in person as it now is by counsel. Given that I find it unattractive to have this matter left open, I allow the appeal and issue a direction remitting the point to the same Employment Tribunal Chairman for him to determine the existence of an implied term, whether there has been a breach, whether any breach was discharged in 2002 or at any time, and damages.