Mr D Rankine v Open Forum Events Ltd: 2416497/2018
JUDGMENT
The judgment of the Tribunal is that the claimant’s claim is dismissed as the Tribunal does not have jurisdiction to deal with it.REASONS
[1]The claimant has brought a claim against his former employer in respect of a failure to pay pension contributions, and it relates specifically to ten contributions of £500 each totalling £5,000.[2]The parties came before Employment Judge Horne on 1 May 2019 when he noted that the claimant's claim was for unpaid pension contributions brought as a complaint of unlawful deduction from wages, and he went on to list a final hearing in two stages and today I am dealing with stage one. Employment Judge Horne set out the matters to be determined at each stage and I have been looking at schedule 1, the issues to be determined on the first day.[3]I have heard evidence from Mr Rankine and from Mr Cram, the Company Chairman. I have also heard from Mrs Murray, an HR Consultant, on behalf of the respondent.[4]I alerted the parties after lunch to a question as to whether or not pension contributions come within the definition of wages for the purposes of the Tribunal having jurisdiction to deal with such cases, having earlier suggested that it was a relatively straightforward position that the employer contribution was part of the claimant's emoluments.[5]It now seems to me, looking at section 14 of the Employment Rights Act 1996 dealing with certain exceptions that employer pension contributions are not covered by the Wages Act part of the Employment Rights Act.[6]Turning to section 27 of the Act which was the subject of a judgment in the Employment Appeal Tribunal in Somerset County Council v Chambers UKEAT/0417/12/KN, by His Honour Judge Peter Clarke handed down on 25 April 2013. One of the questions in that case related to payments to a Local Authority Pension Scheme, and it was the conclusion of the learned Judge in paragraph 18: “As to the employer’s pension contributions to the superannuation fund on the claimant's behalf ordered to be paid by way of unauthorised deductions, I accept Mr Oudkerk’s submission that the Employment Judge had no jurisdiction to so order. Although it is well recognised in the European jurisprudence that entitlement to a pension is deferred pay, that does not mean that an employer’s contributions to the pension fund on behalf of an employee amount to wages. As section 27(1)(a) makes clear, wages means any sums payable to the worker in connection with his employment, it does not mean contributions paid to a pension provider on his behalf. On this footing his Wage Act claim in relation to pension contributions necessarily fails regardless of whether or not he was at the relevant times an employee entitled a membership of the scheme. For completeness I reject Mr Oudkerk’s alternative submission that this part of the claim is excluded by section 27(2)(c) of the Employment Rights Act. Pension contributions are not payments by way of a pension in connection with a worker’s retirement: the former is a payment into the scheme, the latter is a payment out.”[7]It seems to me that on the jurisdictional question of whether pension contributions are wages for the purposes of this claim I must find that a pension contribution is not covered as something I can make orders in respect of under Part II of the Employment Rights Act 1996, and therefore the claimant's claim fails because the Tribunal has no jurisdiction to deal with it.