Mrs R Kaur v Imperial College Healthcare NHS Trust: 2206299/2023
EMPLOYMENT TRIBUNALS
Case No 2206299/2023
Between
Mrs R KaurClaimantImperial College Healthcare NHS TrustRespondent
Before
Employment Judge B SmithIn person for claimantMr R Moretto (instructed by Counsel) for respondentDate 31 July 2024
JUDGMENT
The complaint under s.11 Employment Rights Act 1996 is not well-founded and is dismissed. JUDGMENT having been sent to the parties on 7 August 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]The claimant is employed as a ward administrator by the respondent, an NHS Trust. She started employment with Stamford Hospital on or around 29 September 1999 and was transferred under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) to the respondent on 1 April 2002. The claim is a reference under s.11 Employment Rights Act 1996 (‘ERA’) relating to the claimant’s pension arrangements. In summary, her complaint arises from alleged non-contributions by the respondent that the claimant says should have been made to a private pension scheme known as Friends Provident, later taken over by Aviva.[2]Acas conciliation started on 4 April 2023 and ended on 6 April 2023. The claim was presented on 28 April 2023. The claim was within time because the claimant’s employment is still continuing. Procedure, documents, and evidence heard[3]The claimant represented herself throughout the hearing. The respondent was represented by counsel. The tribunal took the claimant’s position into account throughout.[4]No particular adjustments were required or asked for by any of the parties or witnesses. The Tribunal took regular breaks throughout proceedings. The claimant confirmed that she was happy to proceed after each break and at no stage suggested that she was unable to carry on or required more time.[5]The list of issues was confirmed by EJ Brown in Case Management Orders dated 31 October 2023. These specifically find that, following clarification, the claim had been previously clarified as a reference under s.11 ERA ‘as to whether the claimant had a contractual right to employer pension contributions to be paid into the Friends Provident scheme on the date when her employment transferred to the respondent’ (at paragraph 5) however in light of s.11 ERA and further clarification, the issue for determination was (at paragraph [10]): 1. What were the particulars which ought to have been included (or referred to) in the Claimant’s statement of terms and conditions, relating to pensions and pension scheme, s1(4)(d)(iii) ERA 1996, from the commencement of the Claimant’s employment with the Respondent, to the date she presented her claim?[6]The order then sets out the contentions of the parties on the issue (at paragraph [10](a) to (d)).[7]The claimant specifically agreed the list of issues at the start of the hearing. When she stated that her claim was that the respondent stopped contributing towards her pension, she was reminded that for reasons already covered at previous hearings some points may not be in the jurisdiction of the Employment Tribunals, and she was reminded that the list of issues was that she had agreed. There was no further dispute about the list of issues.[8]The claimant and respondent witnesses, Jane Fisher and Deborah Martin, gave evidence under oath or affirmation and were cross-examined.[9]The agreed documents were:a. A final hearing bundle paginated to 741;b. Witness statements (as above);c. Claimant and Respondent Notes; andd. Cast list and chronology.[10]The tribunal only took into account those documents which the parties referred to during the course of the hearing in accordance with the normal practice of Employment Tribunals. The parties were made aware of this from the outset.[11]Both sides made closing submissions but relied primarily on their Notes for the hearing. Procedural history[12]In order to understand how the claim proceeded it is necessary to summarise some parts of the procedural history. The case management orders of EJ Brown dated 31 October 2023 and EJ Khan dated 22 August 2023 record this in full.[13]In summary, the claim as set in the ET1 was that ‘the employer has failed to contribute to my private pension, which was an agreement in the TUPE terms and conditions, since 2005’. The respondent applied to strike out the claim on the basis that the claimant remains employed and so no breach of contract claim could be brought in accordance with the Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994; employer pension contributions are not wages under the ERA (applying Somerset County Council v Chambers UKEAT/0417/12 at [18]); and any such claim was out of time.[14]In light of the legal issues above EJ Khan determined that the claim was therefore neither for unlawful deductions from wages nor breach of contract (paragraph 6) and that the claim must be a reference under s.11 ‘’as to whether the claimant had a contractual right to employer pension contributions to be paid into the Friends Provident scheme on the date when her employment transferred to the respondent’.[15]It should be noted that this phrasing was potentially liable to misinterpretation and was later clarified by EJ Brown by reference to the full wording of s.11 ERA. Also, the written particulars under s.1 ERA are not the contract of employment. They are evidence, but not necessarily conclusive evidence, of the contractual terms: Parkes Classic Confectionary v Ashcroft (1973) 8 ITR 43 Div Ct.[16]At the later hearing before EJ Brown the issue was clarified as above and is in accordance with the wording of s.11 ERA.
Relevant Law
[17]I applied the relevant sections of the Employment Rights Act 1996 (‘ERA 1996’). These include: 11 References to employment tribunals(1) Where an employer does not give a worker a statement as required by section 1, 4 or 8 (either because the employer gives the worker no statement or because the statement the employer gives does not comply with what is required), the worker may require a reference to be made to an employment tribunal to determine what particulars ought to have been included or referred to in a statement so as to comply with the requirements of the section concerned.(2) Where— (a) a statement purporting to be a statement under section 1 or 4, or a pay statement or a standing statement of fixed deductions purporting to comply with section 8 or 9, has been given to a worker, and (b) a question arises as to the particulars which ought to have been included or referred to in the statement so as to comply with the requirements of this Part, either the employer or the worker may require the question to be referred to and determined by an employment tribunal. 12 Determination of references. (1) Where, on a reference under section 11(1), an employment tribunal determines particulars as being those which ought to have been included or referred to in a statement given under section 1 or 4, the employer shall be deemed to have given to the worker a statement in which those particulars were included, or referred to, as specified in the decision of the tribunal. (2) On determining a reference under section 11(2) relating to a statement purporting to be a statement under section 1 or 4, an employment tribunal may— (a) confirm the particulars as included or referred to in the statement given by the employer, (b) amend those particulars, or (c) substitute other particulars for them, as the tribunal may determine to be appropriate; and the statement shall be deemed to have been given by the employer to the worker in accordance with the decision of the tribunal[18]Section 1(1) provides that Where a worker begins employment with an employer, the employer shall give to the worker a written statement of particulars of employment.[19]The particulars include any terms and conditions relating to pensions and pension schemes: s.1(4)(d)(iii).[20]Section 1(2)(d) ERA permits terms and conditions relating to pensions and pension schemes to be provided by reference to some other document.[21]If there are changes to the particulars then the employee must be notified of these: s.4(1),(3) ERA. However, there is no particular requirement that a fresh statement of employment particulars is provided by an employer following a TUPE transfer, other than the change of name of any employer, assuming that the other relevant conditions of employment do not change.[22]There is no suggestion that the conditions did change in this case nor that the name of the employer was not provided to the claimant.
Findings of fact
[23]The claimant is employed as a ward administrator by the respondent, an NHS Trust. She started employment with Stamford Hospital on or around 29 September 1999 and was transferred under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) to the respondent on 1 April 2002.[24]Stamford Hospital provided the claimant with a document titled ‘Principal Statement of Terms and Conditions of Employment’. The document is at page 101 of the bundle. It is stamped as having been received on 30 September 1999. It includes: Other Benefits additional to pay After one year of completed service the Employee will be entitled to a choice of benefits. These are listed in the Employee’s Handbook where more details can be found. If the Employee decides on the option to contribute to the pension scheme this cannot be changed subsequently to another benefit option. This employment is contracted in to the State pension scheme if the pension option is taken.[25]The statement is signed by the claimant dated 19 September 1999.[26]The original handbook is not available due to the passage of time. However, I find that the claimant did have access to it. This is because this is supported by the documentary evidence and there is no evidence to undermine this suggestion. It is clearly referred to in the statement of particulars the claimant signed. Although the claimant was unable to recall exactly what she had access to, given the passage of time, she effectively accepted that she probably did have access under cross-examination.[27]The claimant, around a year later, enrolled in the Friends Provident (later Aviva) pension scheme. She signed a document relating to this (‘Group Personal Pension Plan’) on 28 September 2000. That document included that, before the application was completed, the claimant should check she had received a Key Features leaflet and Illustration for the account. The claimant accepted under cross-examination that she maybe had the details of the pension scheme on the basis of the documentation. I find that she did have access to the all of the details of the pension scheme because this is supported by the documentary evidence, the claimant does not expressly deny that she did, and there is no good reason to believe that she did not. She also accepted in cross-examination that she would have read through any such leaflet (the Key Features leaflet) before signing the pension application form.[28]In light of the claimant’s successful application to join the scheme which refers to the key features, and the express reference to the pension details in the particulars of employment via the handbook, I find that the claimant was provided with all applicable details relating to the relevant pension scheme. She also accepted under cross-examination that she must have had access to the details because she joined it, subject to a lack of specific memory due to the passage of time.[29]It is not in dispute that the claimant’s Friends Provident pension scheme closed in 2007. Although the parties differ as to why this happened – and whose fault it was – it is not necessary for this to be determined as that would be outside of the scope of the claim.[30]However, I do find that it is more likely than not that when the scheme was closed that a leavers pack was sent to the claimant in 2007. This finding is supported by a letter from Aviva dated 2 February 2024 according to their records following disclosure requests as part of these proceedings. It is also agreed that the claimant’s address was constant since 2002.[31]I find that due to the passage of time a substantial amount of documentation is unavailable, such as the original employee handbook, full details of the Friends Provident pension scheme, and the exact reasons as to why and how the scheme ended in 2007. Conclusions 1. What were the particulars which ought to have been included (or referred to) in the Claimant’s statement of terms and conditions, relating to pensions and pension scheme, s1(4)(d)(iii) ERA 1996, from the commencement of the Claimant’s employment with the Respondent, to the date she presented her claim?
Conclusions
[32]It is first necessary to record what this claim is not. It is not a breach of contract claim given the procedural history above. Also, the claimant cannot bring a breach of contract claim because her employment is still continuing: Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994. It is also not a claim for unauthorised deductions of wages. This is because of Somerset County Council v Chambers UKEAT/0417/12, above. It follows that to the extent the claimant sought a determination that the respondent had stopped making contributions to the Friends Provident scheme, and should not have done so, that is outside the jurisdiction of the tribunal (to the extent that could be an allegation of breach of contract). Alternatively, if that was analysed as a claim for unauthorised deduction of wages, that must fail applying Somerset County Council, above.[33]In light of the factual findings above, I conclude that the particulars which ought to have been included or referred to in the claimant’s statement of terms and conditions relating to pensions and the pension scheme from the commencement of the claimant’s employment with the respondent to the date she presented her claim are those that she was provided with. These are the statement of particulars provided by the original employer. That statement fulfils the requirements of s.1 ERA because it makes reference to the pension scheme via the Employee Handbook. In light of the factual findings above as to the details of the pension scheme, and the claimant’s access and knowledge of them, I am satisfied that s.1 ERA was fulfilled by the original employer. It is clear that the claimant received the employment particulars by her signature on them.[34]In those circumstances I can confirm the particulars provided to the claimant by her original employer as complying with s.1 ERA, and the same upon her TUPE transfer, in so far as they relate to pensions. It is not part of this claim to consider any other potential changes, although clearly the name of the employer did in fact change.[35]Also, there is no reason to find that there was any change of contractual terms by the respondent upon TUPE transfer relating to pensions. It follows that there is no additional statement of particulars that should have been provided to the claimant at that stage.[36]Even if this conclusion is wrong, I find that there is insufficient evidence on which any further declaration of the terms and conditions on pension arrangements ought to have been. This is because there is insufficient documentation available from which I could make such a finding. This is because of the significant passage of time that has occurred since both the original statement of particulars was produced and the TUPE transfer itself.[37]For those reasons the claim is dismissed.