Gbadebo v Department Of Environment [1997] UKEAT 658_96_1301

EAT
Gbadebo v Department Of Environment
[1997] UKEAT 658_96_1301 · 1996-11-27
MR JUSTICE LINDSAY : We have before us an appeal by Mr Jim Gbadebo against the decision of the Industrial Tribunal under the Chairmanship of Mr John Warren given on 10th May 1996. The decision, in proceedings in which Mr Gbadebo was applicant and the Department of the Environment was respondent, was as follows:-"The unanimous decision of the Tribunal is that the terms and conditions of employment as supplied to the Applicant dated 22nd March 1996 accurately state the terms and conditions relating to pension entitlement insofar as it affects the Applicant".The application had been made under s. 1 of the Employment Protection (Consolidation) Act 1978 which provides, so far as material for present purposes, as follows:-
"1 (1) Not later than two months after the beginning of an employee's employment with an employer, the employer shall give to the employee a written statement which may, subject to subsection (3) of section 2, be given in instalments before the end of that period.
(3) The statement shall also contain particulars, as at a specified date not more than seven days before the statement or instalment of the statement containing them is given, of -(d) any terms and conditions relating to any of the following - ...

(iii) pensions and pension schemes."

It is necessary also to refer to s. 11, as follows:-

"11. (1) Where an employer does not give an employee a statement as required by section 1 or 4 (1) or 8 [(that is to say, either because he gives him no statement or because the statement he gives does not comply with those requirements)], the employee may require a reference to be made to an industrial 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 relevant section.

(2) Where -

(a) a statement purporting to be a statement under section 1 or 4 (1), or ...(b) ...has been given to an employee, and 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 employee may require that question to be referred to and determined by an industrial tribunal ......(5) Where, on a reference under subsection (1), an industrial tribunal determines particulars as being those which ought to have been included or referred to in a statement given under section 1 or 4 (1) the employer shall be deemed to have given to the employee a statement in which those particulars were included, or referred to, as specified in the decision of the tribunal.(6) On determining a reference under subsection 2 (a) an industrial tribunal may either confirm the particulars as included or referred to in the statement given by the employer, or may amend those particulars, or may 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 employee in accordance with the decision of the tribunal."No argument was addressed to us that the particulars of terms and conditions required under s. 1 (3) (d) are only of express terms. The terms " Any terms and conditions" cannot be said clearly to exclude implied terms and conditions so we shall assume (without deciding) that implied terms are also required to be particularised. The Industrial Tribunal had proceeded on that basis and although it expects a great deal of employers for them to be able, perhaps unaided, to spell out everything which a fully-informed Court might imply, we shall proceed on the same basis as the Tribunal.Mr Gbadebo's "Grounds of Application" was only 2 paragraphs long and read as follows:-
"1. My employers have not provided me with a statement of terms and conditions of employment. I specify a declaration to that effect. Further, a Tribunal is also to make a declaration with regard to particular terms that should be contained in the statement of terms and for employment which is that Section 7 (2) Civil Service Compensation Scheme will apply.
2. The grounds for seeking this declaration is that the matter has been raised with the Respondents who have declined to accept that such a provision applies."Before making further reference to the terms of any pension or compensation schemes it will be as well briefly to set out the facts necessary for an understanding of this appeal. Mr Gbadebo was born on 26th July 1954. As a young man he took up employment with H.M. Stationery Office in 1974. He was then a Civil Servant. In 1976 he transferred to Trinity House, thus ceasing to be a Civil Servant. On 24th April 1988 he transferred back to the Department of the Environment for whom he has since worked. He accordingly once again became a Civil Servant on 24th April 1988 and has so remained to date.The chief pension scheme for Civil Servants is called "The Principal Civil Service Pension Scheme" or, more shortly, the "PCSPS". At Trinity House Mr Gbadebo had been a member of their scheme (which we were required to accept had no trustees of its own) which operated under rules the same (mutatis mutandis presumably) as those of the PCSPS for the time being. For all that, it was a scheme that was separate from the PCSPS although it was at all relevant times a member of "the Club", a number of separate pension schemes, for government, official or quasi-official employers, amongst which schemes transfers were intended to be regulated and facilitated by the Club rules. Mr Gbadebo's particulars of terms of employment at Trinity House included:-
"8.1Superannuation allowances awarded to Trinity House employees are similar to those applicable to Civil servants under the Principal Civil Service Pension Scheme 1974 as authorised by the Superannuation Act 1972.
8.2 In the event of redundancy, such awards as may be payable will be based on what would be payable within the Civil Service."On 1st April 1987 Mr Gbadebo was at Trinity House, was under 40 years of age and was serving in what was called "a Mobile Grade" (the meaning of which we need not trouble with). Although we have not seen a provision in such terms relating to Trinity House employees it is to be taken to be the case, by reason of the Trinity House Scheme having the same rules, mutatis mutandis, as those of the PCSPS, that the Trinity House Pension Scheme had some provision on the following lines or to the following effect:-
"... [a Trinity House employee] under age 40 and serving in a mobile grade on 1 April 1987 who leaves a full-time mobile post at age 40 or over but under age 50 under the Compulsory or Redundancy Early Severance Category will receive the following benefits:"
We shall take it that the Trinity House Scheme then referred to certain pension and lump sum and compensatory benefits which were plainly capable of being very valuable and which are together called "Reserved Benefits".When he transferred to the Civil Service on 24th April 1988 from one Club member, Trinity House, to another, the Department of the Environment, the Club had a rule relating to transfers to the PCSPS as follows:-
"1.2.1 The PCSPS participates in the Public Sector Transfer Arrangements (the Club). The Club consists of a number of occupational pension schemes (mostly from the public sector) which have agreed reciprocal transfer arrangements.
1.2.2 The purpose of the Club is to ensure that a person suffers no loss in the value of benefits as a result of the transfer. This is achieved by the new Club scheme treating the transfer value in a way which protects the value of the benefits accrued in the former Club scheme.NOTE "No loss in the value of benefits' does not mean that people who transfer under the Club arrangements are necessarily given the same amount of reckonable service in the new Club scheme as they have accrued in the former Club scheme.1.2.3 The Club transfer arrangements are used when a pension transfers from one Club scheme to another, provided the requirements and arrangements for a Club transfer are complied with. These are set out in section 2.NOTE It is possible for a person to transfer from one Club scheme to another Club scheme outside the Club arrangements. In these circumstances, the Club transfer arrangement are not used. The person's transfer is dealt with under the non-Club transfer arrangements by both the former and the new scheme. This may lead to the person receiving less reckonable service in the new scheme than would have been the case if the Club arrangements had been used."Rule 1.2.7 of the Club Rules shews that these Rules were introduced with effect from 6th April 1988, and related to transfer value received by the PCSPS on and after that date. Mr Gbadebo transferred on 24th April 1988 and it has not been suggested that the Club Rules cited do not apply to his transfer on any ground relating to its date or that his transfer was "outside the Club arrangements". The expression in those Rules that the purpose of the Club is to ensure that a person suffers "no loss in the value of benefit" may or may not have been fully explained in other passages from the Club or PCSPS Rules, complete versions of which were not before either the Industrial Tribunal or us, but the words quoted do not seem in terms to require that no particular benefit shall not be diminished on a transfer but rather that the overall value of all benefits as a package shall not be lessened. The Note to Club Rule 1.2.2 also points to some such conclusion.The terms of the PCSPS when Mr Gbadebo returned to the Civil Service late April 1988 included the provision which his "Grounds of Application" had referred to as "Section 7 (2) Civil Service Compensation Scheme". It reads as follows (with our emphasis):-
"7.2 Subject to rule 7.3, a civil servant under age 40 and serving in a mobile grade on 1 April 1987 who leaves a full-time mobile post at age 40 or over but under 50 under the Compulsory or Redundancy Early Severance Category will receive the following benefits:"
The rule then went on to describe Reserved Benefits.The Club was less than prompt in its reaction to Mr Gbadebo's transfer but on 18th January 1990 the Common Services branch of the Departments of the Environment and of Transport wrote to Mr Gbadebo giving him a choice; his previous employer could pay a transfer value which would purchase 14 years and 81 days reckonable service to be credited to him under the PCSPS or alternatively he could receive specified benefits from the Trinity House Scheme, namely a deferred pension from normal retirement age (and provision for his widow) and a lump sum. The letter continued:-"I should be grateful if you would sign and return to me the enclosed copy letter and form including whether or not you wish to proceed with the transfer of your pension benefits so that I may advise your previous pension scheme accordingly".We have not seen the copy letter but the letter from the Department of Transport is signed by Mr Gbadebo underneath the words:-"I do wish to proceed with the transfer of my pension benefits (as outlined above)".He thus elected to receive a credit of 14 years and 81 days reckonable service and, on the face of the letter, nothing else by way of benefit transferred from his former scheme to his new one. On 21st February 1990 the Trinity House Scheme accordingly paid £17,525 to the Common services Department we have mentioned.When Mr Gbadebo later asked for his particulars of employment at the Department of the Environment they included as follows:-

"8. PENSION

A non-contributory pension scheme is provided and you are entitled to membership of that scheme. Full particulars of the pension scheme are set out in a booklet which can be obtained from DOE/PM3. A contracting-out certificate under the Social Security Pensions Act 1975 is in force in respect of this employment."The booklet makes no reference, we are told, to any Reserved Benefits potentially available in respect of service in other Club Schemes being transferred upon transfer from such other Schemes. Mr Gbadebo accordingly put in train enquiries to find to what he was so entitled. He was dissatisfied with the answers and so made application to the Industrial Tribunal as we have described.It will be remembered that Mr Gbadebo's short "Grounds of Application" made no reference to the benefits he had earned whilst at Trinity House, nor of their transfer, nor of the claimed applicability of the Club Rules to his position but rather made a bald claim to the benefit of "Section 7 (2)". The Respondent's "Grounds of Resistance" asserted the literally indisputable answer that Mr Gbadebo could not be within 7 (2) as he was not, on 1st April 1987, a civil servant. The Grounds of Resistance contend:-
"(iii) It is therefore denied by the Respondent that the Applicant is entitled to any reserved rights in the Scheme (formerly part of the Principal Civil Service Pension Scheme) for early severance."
Of course, it does not necessarily follow from Mr Gbadebo not being a Civil Servant on 1st April 1987 that he was not entitled to any reserved rights of the kind described; the words "It is therefore denied" were thus unhelpful. Things were getting off to a poor start.The Industrial Tribunal, to judge from paragraph 7 of its Extended Reasons, understood Mr Gbadebo's application as follows:-
"7. The Applicant comes before the Tribunal seeking a declaration by the Tribunal to the effect that he is entitled to those reserved rights under the Principal Civil Service Pension Scheme. Those reserved rights amount to an enhanced lump sum and an increased pension."
On that basis the Tribunal had 2 principal concerns; firstly, the making of such a declaration might involve parties not before it, for example the trustees of the PCSPS and, secondly, a declaration of "entitlement" would involve not so much a determination under s. 11 of the 1978 Act of "What particulars ought to have been included or referred to", so as to comply with s.1 (3) (d) (iii), but rather a declaration of the effect of the alleged terms in issue. Towards the end of their Extended Reasons the Industrial Tribunal says:-"16. Section 11 of the 1978 Act would seem in our opinion to impose on the Tribunal the statutory duty to find the specified terms which have been agreed by the parties and [those] which can properly be implied and which are required by statute to be written into the contract. In the Tribunal's opinion, what is included in the terms and conditions of employment relating to "Pensions" set out at paragraph 10 above fulfils the statutory requirement under section 1 (3) (d) (iii) ie. the statement shall contain particulars of any terms and conditions relating to any of the following:- "(d) (iii) Pensions and Pension Schemes".17. The Tribunal does not consider that it is for the Tribunal to look into the rules to interpret them and to decide whether they should be interpreted in any specific way in respect of a particular employee. We consider we have no other choice on the authorities to which we have been referred."

The Industrial Tribunal then concluded:-

"18. As we have said we are also conscious that the Manager of the pension fund are not the Respondents so that if we were to proceed further and to make a declaration as to the Applicant's entitlement under the Pension Scheme, we would be making an order against a person or body who was not a party to the Tribunal proceedings and who had no opportunity to state their case.
19. For all of these reasons, we find that the statement provided insofar as it relates to pensions and pensions schemes, is adequate and sufficient and fully complies with the obligations on the employer under the 1978 Act and that there is nothing further we can do to assist the Applicant."Before us Mr Tam for the Respondent Department emphasises the ambiguity of Mr Gbadebo's "Grounds of Application" and its reference to a declaration that 7 (2) "will apply". If that were simply a request for an acceptance that it was part of his present contract, there would, he says, be no difficulty, although, of course, as Mr Gbadebo was not a Civil Servant on 1st April 1987 it would seem to avail him nothing. If, however, Mr Gbadebo wishes to have an assurance that he satisfies 7 (2), he cannot have it as he was not a Civil Servant on 1st April 1987. Equally, says Mr Tam, a declaration of the kind understood by the Industrial Tribunal to be sought by Mr Gbadebo as in its paragraph 7 cited above (namely that Mr Gbadebo "is entitled to those reserved rights") is ambiguous. It involves the Tribunal in a declaration of the effect, in events which have not happened and may never happen, of a provision rather than a simple particularisation of terms and conditions, which is all that the Statute requires. Had the effect been properly in issue below, Mr Tam argues, much more evidence would have been needed; for example, of the complete terms of the Trinity House Scheme Rules, the complete Club Rules, the complete PCSPS Rules, evidence as to the provisions as to final determinations of questions arising under the Rules being by those Rules conferred upon the Treasury and evidence as to what, if anything, has so been determined and why.In the face of such argument we can quite see why the Industrial Tribunal decided as it did and we intend no criticism of it when we point to another approach having, it would seem, been overlooked. At a very late stage in her argument Miss Gill for Mr Gbadebo identified the precise term which, she says, is present in Mr Gbadebo's present terms of employment by implication from the Trinity House, Club and PCSPS rules we have cited and which, therefore, should now be particularised for him under s. 1 (3) (d) (iii) of the 1978 Act . It is this:-
"You are entitled to be treated for the purposes of Rule 7.2 as if you were serving as a Civil servant in a mobile grade on 1st April 1987."
Miss Gill tells us the argument she advances in this way was also put before the Industrial Tribunal but it may be, especially with its present emphasis on Club Rule 1.2.2 (added late to our bundles) that it has been put to us with a clarity that it had not achieved before the Industrial Tribunal. We do not understand Mr Tam to say that the argument now put was not put below in any form but rather that in the form in which it was understood to have been put below it was thought to be met, and properly met, by the arguments that commended themselves, as has been seen from paragraphs 16, 17 and 18 of the Extended Reasons, to the Industrial Tribunal. However, the response on the part of the Department that succeeded below leaves unanswered what should have been raised and ruled upon as a fundamental question, namely whether the term Miss Gill has identified is to be implied into Mr Gbadebo's present contract and should accordingly be contained within the particulars with which he has been supplied.Even though, given the way his "Grounds of Application" were drafted and given also the nature of the declaration he was (as paragraph 7 of the Extended Reasons shews) then understood to seek, Mr Gbadebo cannot criticise the Tribunal's omission from any position of strength, it would, as it seems to us, be profoundly unsatisfactory to oblige Mr Gbadebo to rest content with the Industrial Tribunal's decision which leaves that fundamental question as raised, however ambiguously, yet unresolved. Moreover, for so central a question to be raised and yet, however understandably, to be left unresolved can fairly be described as an error of law on the Tribunal's part.Accordingly, whilst leaving undisturbed the Industrial Tribunal's decision so far as it goes on the difficulties put in the way of Mr Gbadebo's case by the absence from the proceedings of the relevant parties needed for a meaningful declaration and by the Tribunal's proper reluctance to embark on any statement as to the effect (in the light of events which have not yet happened) of any particular term, we remit one matter to the same Tribunal. That one matter is the question we have described above as the fundamental question.It may be thought that Mr Gbadebo's statement in writing, as we have cited it, that "I wish to proceed with the transfer of my Pension benefits (as outlined above)" puts a problem in Mr Gbadebo's path as he seeks to imply a term which could be said hardly to lie comfortably with that express provision. So also might difficulty be caused to him by the rule, if such it is, that leaves the Treasury as master of all questions as to what provisions are offered under the PCSPS. However, it is not for us to speculate how the position might look when matters are more fully regarded and when all surrounding circumstances are visible. Nothing we say is to be taken to circumscribe the Industrial Tribunal's approach to the question we leave for them.As its resolution of the fundamental question which we have identified is likely, as Mr Tam rightly argued, to require further evidence, we leave the parties to seek from the Industrial Tribunal such directions as to further evidence as it shall think fit.