Smith v Gartner UK Ltd (Practice and Procedure: Striking-out/dismissal) [2016] UKEAT 0279_15_0803

EAT
Smith v Gartner UK Ltd (Practice and Procedure: Striking-out/dismissal)
[2016] UKEAT 0279_15_0803 · 2016-03-08
[1]I refer to the parties as the Claimant and the Respondent, as below. This is the Claimant’s appeal against a Judgment of the Reading Employment Tribunal (Employment Judge Hill sitting alone; “the ET”), sent to the parties on 24 June 2015. The parties were both represented by counsel before the ET but by different counsel to those appearing before me on the appeal. By its Reserved Judgment the ET allowed the Respondent’s application to strike out the Claimant’s claims of unlawful deduction of wages and direct age discrimination. The Claimant’s appeal was permitted to proceed to a Full Hearing by Lady Stacey. The Background Facts[2]The Claimant had continuous employment going back to 1989 but had transferred to the Respondent’s employment in 1996. By letter of 28 February 1996, the Respondent offered the Claimant employment, referring to a benefits package, including a “Disability plan”, stating:
“All benefits offered are subject to the rules in force at that time. Cover for certain benefits may require a medical examination. Copies of such schemes can be obtained from … Manager of European Disbursements. Please note however, that the Company will always endeavour to operate a competitive and attractive package of benefits, but reserves the right to terminate or offer alternative benefits wherever appropriate.”
[3]The Claimant signed her acceptance of the Respondent’s employment offer and the statement of terms and conditions, which had been included with the offer letter and which (relevantly) repeated the caveats set out above. There was also a “Guide to Company Benefits” (“the Guide”), upon which the Claimant placed reliance before the ET. This provided:
“This guide describes your Gartner benefits in detail, in conjunction with your terms and conditions of employment. You will find descriptions of your coverage and choices in each benefit area. Please review this guide carefully. Use it as an ongoing reference whenever questions arise regarding your benefits. In summary we offer the following benefits to our employees: Life Assurance During your employment with Gartner UK your life is insured for three times your ‘On Target Earnings’ i.e. salary plus commission/bonus. … Your life is insured for death under any circumstance whilst you are an employee of Gartner UK. In the event of death, the insured sum is passed to trustees of [the] pension fund for disposition. … Private Health Insurance Gartner UK operates a Private Medical Insurance Scheme through PPP; all employees are entitled to personal cover with effect from the first day of your employment, however membership is optional. … Company Sick Pay Should you be absent from work due to illness during your employment you will be entitled to receive Company Sick Pay, based on your normal salary for the period specified … Permanent Health/Disability Insurance Gartner provides Permanent Health Insurance to all employees, subject to your terms and conditions of employment. However the maximum waiting period for membership in this scheme is three years. This insurance provides 75% of salary or 75% of prior tax year earnings; whichever is the greater, after 26 weeks of continuous absence through certified illness or disability. The insurance will continue until either return to work, retirement in service, or death in service. During the 26-week qualifying period, prior to the commencement of the insurance scheme you will receive a mixture of Company Sick Pay and social security benefits. This insurance is provided to you at no expense.”
[4]On 25 November 2002 the Claimant went off sick and did not return to work. From 26 May 2003 she started to receive payments under the Permanent Health/Disability Insurance (“the Scheme”) provided by the Respondent as part of her benefits package. At that time the Respondent’s retirement age was aged 60. No issue arose in respect of this as at May 2003; there was no law against age discrimination at that time.[5]On 15 August 2007, an email to the Respondent’s employees was forwarded to the Claimant. Under the heading “Income Protection (Disability Insurance)”, it stated the age limit for benefits would increase “in line with legislation and the Gartner UK pension plan”. On 4 March 2014, however, the Claimant met with a Ms Donna Small - the Respondent’s HR IS/Compensation and Benefits Director - and was advised that her benefits would cease when she turned 60 as the Scheme provider would no longer continue to provide the benefit after then. The Claimant turned 60 on 1 September 2014; her benefits under the Scheme ceased, albeit she remained in the Respondent’s employment. The ET Proceedings, Conclusions and Reasoning[6]The Claimant complained of an unlawful deduction of wages due to the fact that she no longer received any Permanent Health Insurance payment or equivalent from the Respondent. She contended (so far as relevant) that she had a continuing contractual right to receive such payments until her retirement in service (“the wages claim”). She further claimed that, because of her age, the Respondent treated her less favourably than a person under 45 by not continuing her contractual Permanent Health Insurance payments to age 65 and that was not a proportionate means of achieving a legitimate aim (“the direct age discrimination claim”).[7]A Preliminary Hearing had been listed before the ET for 18 May 2015 at which the ET was due to consider a strike out application by the Respondent. Having commenced that hearing, it transpired that the Claimant had not anticipated the way in which the Respondent was pursuing the application and there would not be time to conclude it that day. The hearing was therefore adjourned and the parties directed to send in further written submissions so the ET could determine the application on the papers, which it did on 11 June 2015.[8]Doing so, the ET observed that whilst the parties had “put forward some erudite legal argument” the case was “very simple on its facts”. Specifically:(1) The Claimant received her payments from an insurance policy and was bound by its terms, as applicable at the time she started claiming thereunder, i.e. May 2003 (paragraphs 24 and 25).(2) Those terms included the provision that payment would cease at age 60 because that was the then applicable retirement age (paragraph 25).(3) The Claimant relied on the Guide but that stated the benefits offered were subject to the rules in force at that time, i.e. those applicable in May 2003, which included the provision that payment ceased at age 60 (paragraph 26).(4) There could be no issue of age discrimination at that time as the Age Regulations did not come into force until 2006 (paragraph 27).(5) Even if the Guide was contractual, the Claimant’s terms and conditions were clear: the Respondent’s obligation was to take out insurance, not to make any payment. The payments were made by the insurer to the individual; there was no contractual duty on the Respondent to make any payment to the Claimant. The unlawful deductions claim must therefore fail (paragraphs 28 and 29).[9]On direct age discrimination, the ET further concluded:
“31. The respondents are her employers. Their duty was to provide PHI. They did that. … 32. They continue to have a health insurance available to employees which continues to the age of retirement. That policy is not available to the claimant as she cannot meet the terms and conditions of that insurance as she has not been working in the period immediately prior to making a claim under that insurance. That relates to the terms of the insurance policy, not a failure by the respondents to provide an insurance policy. Her inability to qualify for that policy is unrelated to her age; it relates to the fact she has not been an active employee for the qualifying period.”
The Appeal[10]The Claimant’s points of challenge can be sensibly summarised as falling into the following three categories of submission:(1) The ET erred in failing to proceed on the basis that the Guide was contractual and failed to apply an objective test of construction of the contract; specifically, it failed to have regard to the contractual relationship as between employer and employee (and not between employee and insurer). It had been wrong to conclude that the obligation on the Respondent was limited to providing insurance and should have found that the Respondent’s contractual obligation was to make payments to the Claimant (Grounds 1 to 4; “ the construction point ”).(2) The ET wrongly construed “retirement” to mean age 60; specifically, it (i) wrongly used the insurance policy as an aid to construction, (ii) wrongly equated retirement to mean age 60 when it could be earlier or (with the Respondent’s agreement) later, (iii) failed to consider whether the Claimant’s entitlement was varied by the August 2007 announcement, so her benefits would continue until age 65, and (iv) erroneously assumed the relevant insurance policy was with Sun Life when documents indicated the Respondent’s liabilities were indemnified by Unum (which provided payment to age 65) (ground 5; “the correct retirement age point”).(3) The ET erred in striking out the direct age discrimination complaint: (i) erroneously assuming the insurance policy was with Sun Life rather than Unum (see above) and (ii) failing to consider whether the Respondent had discriminated against the Claimant as to her “terms of employment” for the purposes of section 39(2)(a) Equality Act 2010 (“EqA”). The Approach[11]The ET was exercising its power to strike out a claim under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 , Schedule 1, Rule 37(1)(a). The circumstances justifying the strike out of a claim as having no reasonable prospect of success will be rare. It is a high test to apply - no reasonable prospects - and one that should be exercised only after consideration of all the relevant material ( Balls v Downham Market High School & College [2011] IRLR 217 EAT). In most cases it will be inappropriate to strike out a claim on this basis, where there is conflicting evidence on the issue to be determined (e.g. ED & F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472 ); it will be particularly rare for this course to be appropriate in discrimination cases, save in the very clearest circumstances ( Anyanwu v South Bank Student Union [2001] IRLR 305 HL).[12]As for the nature of the ET’s task, the parties agree the correct approach to contractual construction is as laid down by Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 HL at pages 912H-913E.[13]The main issue for the ET in this case was whether the Claimant’s entitlement was to benefits under an insured scheme or simply to such benefits. This is an issue that has been the subject of judicial consideration in previous cases. Acknowledging that such cases will be fact-specific (and do not lay down any general principles), both parties referred to a number of authorities, seeing the facts as potentially analogous (and of assistance) to this appeal.[14]Thus, in Anite Systems Ltd v Williams-Key UKEAT/898/98, it was held that the contractual entitlement was limited to payments from an insurance scheme because the reference in the employer’s handbook to a Permanent Health Insurance Scheme had to be a reference back to a scheme maintained with an insurance company and not an internal employer scheme. On the other hand, in Earl v Cantor Fitzgerald International [2000] EWHC (QB) 555 , the Court rejected the employer’s argument that its long-term disability scheme was simply an insurance scheme, subject to the insurer’s rules. In that case, it was held that the language of the scheme rules - particularly the statement that payments under the scheme were in the nature of salary - made clear this was an undertaking on the part of the employer not a contract of insurance (see, in particular, paragraph 28 of that Judgment); specifically:
“payments of benefit made to a Member under the Scheme … are a continuance of salary or earnings and although benefits are insured by the Employer they are not insurance benefits to the Member …”
[15]Similarly, in Pioneer Technology (UK) Ltd v Jowitt [2003] EWCA Civ 411 , the employer’s argument - that its obligation was limited to establishing a scheme for long-term disability pay; to put in place the insured scheme not otherwise to make payments to the employee - was also rejected. The relevant clause represented that the employer would make provision (“run a scheme”) for pay during long-term disability; it made no reference to any policy of insurance taken out by the employer to cover its potential liabilities.[16]The guidance that I derive from these and similar authorities is that each scheme has to be construed carefully with particular attention to the terms as described to the employee.[17]As for the direct age discrimination claim, the nature of the obligation upon the Respondent was also relevant; as Langstaff P held in Hall v Xerox UK Ltd UKEAT/0061/14:
“18. The question of whether an employee has been subjected to less favourable treatment by any act or deliberate failure to act of his employer is one which looks to the cause of that act or deliberate failure to act. As Underhill J pointed out in a familiar passage in Amnesty International v Ahmed [2009] ICR 1450 , at paragraph 33, sometimes discrimination is inherent in the act complained of, as for example in the application of a criterion, apparently neutral upon its face but in effect of a discriminatory nature, e.g. by permitting free entry to a swimming pool only for those who are of pensionable age. In other cases, it is a question of establishing, on the evidence, what for the purposes of the complaint may be said to have caused the detriment. 19. … it is for the Tribunal as primary fact-finder to identify what it considers factually is the cause of the less favourable treatment. It is a fact of life that many events may be said to be causes of later consequences. In the search for a cause or a principal cause, to answer the legal question whether a wrong has been done or a whether a remedy is required, it is likely to be unhelpful to include every possible cause of a later consequence (even if one could). A Judge not only is entitled, but has to, come to a view as to what, in sensible, practical or (as has sometimes been termed) robust terms, is the cause of what has occurred about which complaint is made. Provided that he is not perverse in doing so, and has adopted an approach to determining this question which displays no error of law, that finding cannot be upset. 20. [The Respondent’s] … essential case here is that the Judge… was entitled to his conclusion that the reason why the Claimant did not get the benefit was because Unum refused to pay the employer the amount of benefit to which he would otherwise have been entitled. That was an act, so defined, of Unum. It was not an act of the employer. That cannot be said to be a conclusion which was outside the entitlement of the Employment Judge. It was open to him on the evidence. 21. I accept that reasoning. This is not a case which is analogous to the example of the women-only gym. The nature of the scheme was not such as to exclude fixed-term employees from benefit. There were particular provisions which related to their potential receipt of benefit which in fact applied, but it is not and could not, in my view, be the type of criterion case to which Underhill J in Ahmed made reference by mentioning James v Eastleigh Borough Council [1990] IRLR 572.”
Submissions The Claimant’s Case[18]Mr Isaacs started by reminding me of the Claimant’s pleaded case, specifically her contention that the Guide set out the relevant statement of her benefits and there was a contractual obligation upon the Respondent, but also that the entitlement was varied in August 2007, such that retirement age increased to 65. The Respondent’s case was that the relevant policy was insured through Sun Life, but the opening words of the Sun Life policy made plain it was a policy between employer and insurer; third parties would not be permitted to enforce its terms and it was the Respondent that would disperse any benefits to employees (indeed, the Claimant received benefits from the Respondent directly not the insurers).[19]There were also, relevantly, differences in certain of the terms of the insurance policy and the information provided to employees. The ET’s focus was on the terms of the policy not the terms of the employment contract; it wrongly assumed the Claimant was paid by the insurer and failed to refer to her contention that the contractual term was varied in August 2007.[20]Turning to the grounds of appeal, it was common ground the ET should have proceeded on the basis that the Guide was incorporated into the Claimant’s contract. The Respondent said the ET had done so. The Claimant disagreed. In any event, the ET erred in its construction of the contract. It should have adopted an objective construction, applying the principles laid down in Investors Compensation Scheme . Failing to adopt that approach, the ET erred in considering, as part of the relevant factual matrix, the fact there was a policy of insurance. There was no basis for concluding that the insurance policy was incorporated into the contract, and it could not therefore be relevant as an aid to construction. The ET failed to look at the surrounding context or what a reasonable observer would conclude, instead relying on its own view. Having proper regard to the Guide, it was relevant that it referred to “Gartner benefits” and did not refer in general terms to insurance or insurance policy but stated, “We offer the following benefits to our employees”. Although there was a reference to “Permanent Health/Disability Insurance”, which muddied the waters to some degree, that was said to be subject to terms and conditions of employment not to the rules of an insurance policy (indeed, it identified more favourable conditions for benefits than the policy provided). It also made reference to salary , which was a benefit as between employer and employee; it was what an employer provides (see Earl ). Looking at the terms as a whole, that provided reasonable argument that the employer was providing the benefit.[21]Separately, the ET erred in construing the word “retirement” to mean age 60: even if the obligation on the Respondent was merely to provide insurance, there remained the question as to what insurance and for how long? The Claimant’s case had been that retirement age was a flexible concept and allowed for the possibility that benefits would continue until age 65 and, further, that the email of August 2007 gave rise to the argument that there was an obligation (to be implied as a matter of business efficacy if nothing else) to extend the benefits. Even if the obligation on the Respondent was to put in place an insurance policy, then the ET needed to consider whether, given the variation argued for by the Claimant, it was obliged to extend that policy to age 65. The ET had further proceeded on the basis that the insurance was provided with Sun Life when there was evidence that the liabilities transferred to Unum, which (on anyone’s case) did provide an extension of payment to age 65. This made good the point that the ET had been wrong to consider it could strike out without hearing evidence in this case (accepting that the documents relied on by the Claimant on the appeal to show that liabilities had transferred to Unum had not been included in the material before the ET).[22]As for the points relied on by the Respondent, these raised questions as to the approach adopted by the ET. Specifically, the Respondent sought to rely on the evidence of its witness Ms Small, but she had not given oral evidence and had not been cross-examined; in any event, there was no indication that the ET relied on her evidence. This was particularly relevant to the appeal against the strike out of the direct age discrimination claim. The ET concluded against the Claimant on the basis that she was ineligible to be paid under the Unum Scheme, but it was her case that she was and there were a number of letters making it clear that this was the case (although, again, it was accepted these had not been put before the ET by either party).[23]In any event, the ET erred in failing to consider whether the failure to arrange for benefits to continue until 65 constituted direct discrimination under section 39(2)(a) or (b) of the EqA 2010 , which provides for the right not to be discriminated against in the terms and conditions provided and/or the way in which access to those terms and conditions was provided. Whilst this was not how the Claimant’s case was put below, it was for the ET as primary fact finder to identify what it considered factually was the cause of the less favourable treatment; this was not something the ET should have sought to determine at a strike out stage. The Respondent’s Case[24]Even allowing its onerous obligation when considering whether to strike out, the ET reached a permissible conclusion, plainly right given the material before it; it was not open to the Claimant to impugn the decision on the basis of an argument not taken below (notwithstanding two opportunities for her then counsel to do so) and documents (in her possession) not put before the ET. On the material before the ET it would not have been apparent that there was any dispute of fact.[25]Specifically, in respect of Ms Small’s witness statement, the Claimant had had the opportunity to address this below but had not objected to it being taken as read by the ET. The ET had proceeded (as it was entitled to do) on the basis that Ms Small’s evidence was agreed. That made clear Sun Life had been taken over by Unum, which then stood in Sun Life’s shoes under the old Scheme. The later correspondence on which the Claimant now relied (not before the ET) simply referred to her entitlements under the old Scheme as transferred to Unum; it made no difference to the analysis. As for the new Unum Scheme, there was no evidence the Claimant had any entitlement under this. Indeed, under its terms she did not.[26]As for the question of construction, the Claimant’s terms and conditions provided for a company benefits package including a disability plan, but those terms and conditions went on to state that all benefits offered were subject to the rules in force at that time. Accepting that the Respondent was contractually obliged to include a disability plan in its benefits package, it had done so through the Sun Life Scheme, onto which the Claimant was accepted in May 2003. Considering the offer letter and the terms and conditions document, the objective reasonable bystander would see that the Respondent was committing itself to providing a disability plan but had not set out the entire terms in the communications to employees, albeit it was made plain that the benefits were subject to rules.[27]And the Guide could not be read as setting out the full rules; it was a summary descriptive of benefits rather than creating obligations. Even assuming the Guide was contractual (and the ET had proceeded on the basis of the Respondent’s concession in this regard), it:(i) stated that the Respondent provided Permanent Health Insurance ,(ii) expressly referred to the insurance providing the benefits,(iii) elsewhere spoke in terms of the insurance scheme, and(iv) had stated “ The insurance is provided to you at no expense ”. Whilst there was a reference to 75% of salary, the question remained as to what the Respondent was committed to doing: providing an insurance scheme or making a payment itself? If the latter - as the Claimant contended - why would it refer to insurance? Similarly, the commitment that, “ This insurance is provided to you at no expense ” would make no sense if the obligation was on the Respondent to make payments of disability benefit rather than just put insurance in place. The ET correctly applied an objective test and concluded the Respondent’s obligation was to run a disability (PHI) plan for its employees subject to the rules of the Scheme.[28]As for the question of the duration of the benefit, this still depended on there being a contractual right to the benefit in the first place. To give business efficacy to the contract there had to be a retirement age otherwise long-term sick or disability benefits would continue indefinitely or until death. The ET correctly referred to the fact that the retirement age in the Guide was 60; that was the relevant age at the date any obligation was created and the ET did not need to refer to the insurance policy. The Claimant’s case was that retirement could have been before 60 (but that did not help her) or that she might have been able to retire after age 60 with the Respondent’s agreement; that might be right, but there would still be a requirement for the Respondent’s agreement, as there would be for any variation of a contractual right.[29]As for the argument concerning variation by announcement in August 2007, this had not been argued in submissions below; an unclear reference in the ET1 could not assist the Claimant, especially as she had not put the relevant document before the ET. Even if the ET had the August 2007 document, however, the point would have gone nowhere: it was simply a general communication sent to all UK associates not specific to the Claimant. Whilst it was right to say that under the heading “Income Protection (Disability Insurance)” - again, noting the reference to “insurance” - and there was a reference to increasing the retirement age to 65, the Claimant would have had to argue that this, by itself, amounted to a variation of her terms and conditions. There were a number of problems with that:(i) the communication relied on did not describe itself as such or as having any contractual force;(ii) it would still have been left to the ET to determine whether it was applicable in individual cases, and any individual application would have had to have been subject to further detail;(iii) there would need to be some consideration. As this case had not been advanced below, the ET had not addressed these points, but it was hard to see what the case would have been. An email sent to all UK associates could not be of general uniform application and the Claimant’s case would not be typical; by this time she had already been in receipt of benefits for some five years.[30]As for the direct age discrimination claim, the Claimant’s first contention was that outstanding factual issues needed to be determined, so it was not appropriate to strike out; in truth, there were none. The only point identified was the relationship between Sun Life and Unum. That had not been identified below as an issue in dispute, but was in any event resolved by Ms Small’s evidence; even now the Claimant was unable to explain why any objection should be taken to that. In any event, it was hard to see what the discrimination was. There can have been no discrimination where the Claimant entered into benefits under the old Sun Life Scheme, because at that stage there was no protection against age discrimination. The Claimant would have needed to point to something after 2006 that amounted to discrimination on grounds of age, but that was not the case. The reason why the Claimant ceased to receive her payments was because the insurer had stopped making those payments; the treatment complained of was by the insurance company not the Respondent (see Hall supra ). In any event, the Claimant’s case on direct age discrimination was put on the basis that she had a contractual entitlement; it stood or fell with the wages claim appeal.[31]As for the final point, discrimination in respect of terms and conditions, the ET did not err in failing to consider this argument when it was not put below. In any event, when the insurance was put in place it was not unlawful. After the changes to the legislation, because she was already in receipt of benefits it was not possible to put the Claimant into the new Scheme. The Claimant in Reply[32]Accepting the entire Guide might not be contractual, the question was whether any particular elements had contractual effect. As for the argument on amendment by way of the August 2007 email, whilst that might have been sent out generally it did not mean it could not apply to the Claimant personally: it stated no action was required by associates, it was possible that this would be a variation that would bind the employer. Consideration would have been provided by the Claimant’s remaining in employment, accepting the continuing obligations on her and being prepared to return to work if she became fit enough to do so. Discussion and Conclusions[33]The primary issue raised by this appeal is whether the ET erred in law in striking out the claim at a preliminary stage on the basis that it had no reasonable prospect of success. In proceeding to do so the ET adopted a somewhat unusual course, considering the question almost entirely on the basis of written representations rather than at an oral hearing (the oral hearing on 18 May had been aborted before substantive arguments were heard). It is not suggested that this course of itself gave rise to any error. Indeed, for the Claimant it is accepted that the ET correctly characterised this as “a dispute that turned entirely on interpretation of written documentation”. That said, the Claimant’s appeal raises the question as to whether the ET erred in failing to engage with all aspects of her case and wrongly made assumptions in the Respondent’s favour on matters that were in dispute.[34]These are points that I should address first. In doing so, I keep in mind that any Court or Tribunal considering striking out a claim has an obligation to proceed with caution. All aspects of the claim in question need to be considered, and it will generally be wrong to strike out when there are issues of fact that need first to be resolved. Further, where there is uncertainty, the facts should be assumed in favour of the Claimant.[35]In the present case, the Claimant criticises the ET for failing to engage with certain points in its reasoning. Specifically, it did not expressly determine the question whether there had been a variation of the Claimant’s contractual rights in August 2007. This is a point (which itself depends on the argument that the long-term Disability Scheme gave the Claimant contractual rights as against the Respondent) that is referred to, in passing, in the Particulars of Claim attached to the ET1, when the August 2007 email is referenced but not specifically given the label “contractual variation”. It was not, however, a point that then formed any part of the Claimant’s case as argued before the ET, notwithstanding two separate opportunities being provided (and taken) for her counsel to make written submissions on her behalf. In those circumstances, it would be placing a very high burden upon the ET to require it to have picked through the original Particulars of Claim and assumed the reference to the August 2007 email was a claim of contractual variation. That said, given that strike out is a draconian step, I could see that this might give rise to a potential weakness in the ET’s Judgment and it is a point to which I return below when considering the merits of the arguments in this regard.[36]A similar point can be made in respect of the Claimant’s further complaint that the ET failed to consider her direct age discrimination case as a claim of discriminatory terms and conditions under section 39(2) EqA 2010 . That is not how the ET understood the claim to have been put, and it would have gained no indication of this from the overly generalised nature of the Particulars of Claim and from either written submission lodged on her behalf. The argument on appeal assumes an obligation on the part of the ET to itself consider all possible ways of putting an otherwise opaquely pleaded claim. I again reserve judgment on this question until I consider the point on its merits below.[37]Otherwise, the Claimant objects to the ET proceeding on what is said to be a disputed factual basis, namely that her benefits continued under the Sun Life policy and she did not transfer to the Unum Scheme with a later retirement age of 65. To the extent that the facts as understood by the ET in this respect were derived from the witness statement of Ms Small, the Claimant argues this was an error, given that the procedure adopted had denied her the ability to cross-examine that witness. That is an unfair criticism. As the Respondent’s counsel below (Mr Neaman) explained in his skeleton argument for this appeal, the Claimant’s counsel had indicated he did not have any questions for Ms Small; after checking the statement had been served in good time, it was on that basis that the statement was taken as read. Even if there had been any confusion as to what this meant, the Claimant had two further opportunities to flag up any disagreements with the content of Ms Small’s statement. Having seen how the Respondent was putting its case in this regard (expressly referencing the Small statement as demonstrating that the Claimant had never been a member of the Unum Scheme), she indicated no disagreement. I do not consider the ET erred in proceeding on the basis it did on this issue.[38]That is also my conclusion, for similar reasons, in respect of the additional documents that the Claimant has relied on in this appeal. The letters concerned do not contradict the content of Ms Small’s statement, and so I can be satisfied they would have made no difference in any event. I am, however, sure that the ET did not err in its approach: the Claimant chose not to put those documents before the ET or raise any issue with how Ms Small had described events or how the Respondent had characterised that evidence in its written submissions. An ET does not err in failing to consider something that has not been put before it.[39]I turn then to the substantive points raised on the appeal. At the heart of the Claimant’s case was her argument that she had a contractual entitlement to receive long-term disability benefits from the Respondent until the age of 65. In support of that case the Claimant placed reliance on the Guide. Her first objection is that the ET failed to proceed on the basis that this, so far as relevant, had contractual force.[40]I can see that the ET expressed doubt that the Guide was contractual in nature, but I do not read that observation - which seems to have been made in passing - as implying that the ET did not proceed to consider the case on the basis of the Claimant’s case (and the Respondent’s concession) that it was. The particular paragraph in issue (paragraph 28) shows the ET having regard to the Guide and the terms and conditions document. The ET refers to the Guide at earlier stages in its Reasons and expressly references the fact that it provided for a retirement age of 60. On the face of the reasoning provided, I am satisfied that the ET did not disregard the agreed way of proceeding, i.e. to assume that the Guide had contractual force.[41]That then takes me to the real issue on this appeal: whether or not the ET assumed the Guide had contractual force, did it err in its construction of the contract? Even if the ET failed to see the Guide as contractual in nature on this regard, I make it clear that I proceed on the basis that it was. That was the parties’ agreed position for the purpose of the strike out application, and it is right that I test the conclusion reached on that basis.[42]As the Respondent has accepted, the offer letter and statement of terms and conditions provided to the Claimant made clear it was committing to putting in place a Disability Benefits Scheme. The detail of such a Scheme was not provided, but the Claimant was told the benefits offered would be subject to the rules in force at that time. The natural reading of that statement would alert the employee to the fact that there were rules governing the Scheme that must be contained elsewhere. The Claimant argues that must refer to the Guide; she contends incorporation of this must be preferred to incorporation of the Sun Life insurance policy.[43]Allowing that the Guide itself had contractual force and was incorporated into the contract of employment does not, however, take matters very much further forward as far as the Claimant is concerned. The Guide defines the previously rather vague reference to a disability plan as “Permanent Health/Disability Insurance ” (emphasis added), and whilst it refers to that insurance as being subject to the employee’s terms and conditions of employment that simply takes the reader back to the previous reference to benefits being subject to the rules in force at the time. Moreover, although the Guide does make a reference to salary, this is simply in terms of providing a reference point for the level of benefit that the insurance (and, again, that is the term used) will provide. That is different to the express commitment to the continuance of salary in Earl . Adopting an objective construction of the contractual documentation (including the Guide), and allowing for the context (these are documents being provided generally to a wide range of employees and are inevitably worded in a way that is informative rather than adopting more formal contractual language), I consider it is plain that the commitment being made is to put in place insurance that will cover certified permanent health/disability. If that were not so, there would be no need to distinguish this benefit from company sick pay. There would certainly be no need to tell employees that it was an “insurance” (that would not be relevant for them), and it would make no sense to conclude (as the relevant part of the Guide does) by assuring that the “ insurance is provided to you at no expense ”. That being so, I consider that the ET was right to conclude that the commitment was to provide Permanent Health Insurance subject to the rules of the insurance policy.[44]That largely disposes of the appeal, but, for completeness, I will also consider the other points raised. The Claimant accepts that the insurance policy that applied when she first went into benefit provided that payments would cease at age 60. It would not much matter whether one understood this to be so from the terms of the insurance policy or from the Guide; at the relevant time, both made clear that benefits would cease at the then applicable retirement age of 60. Did the ET then err in failing to engage with the Claimant’s alternative case that this was varied in 2007? Even assuming that the ET was obliged to discern this argument from the Particulars attached to the ET1 (and to ignore the fact it had not been mentioned in any of the Claimant’s submissions), I have been unable to see where this point could go.[45]On the Claimant’s case, the ET would have been bound to then take the initiative to ask for the August 2007 email, which the Claimant had not put in evidence. As I have already stated, I do not consider that the obligation on the ET, even on a strike out application, went that far. Even if I were wrong on that, however, I have seen the August 2007 email and would agree with the Respondent that it was simply too general in its terms to assist the Claimant in establishing a real world case of variation. It was addressed to the employees of the Respondent in general and was not specifically directed towards the Claimant. By that stage the Claimant was in an unusual position; she was already in receipt of benefits under the policy of insurance maintained for the Respondent’s employees under the disability plan. She knew - because her terms and conditions told her (and the Guide simply underlined that) - that her benefits under the plan were subject to the rules in place at the time she entered the Scheme. Had she asked to see those rules, she would have known that the relevant retirement age for her benefits was 60. That had not changed, and the August 2007 email did not suggest that it had.[46]That takes me to the next question: whether the ET erred in failing to see further evidence of variation in the fact that communications subsequently came to the Claimant from Unum (which operated a policy that permitted entitlement to age 65) when again the Claimant did not put those documents before it. Again, I am unable to see that it could be said that the ET erred in this regard. The ET proceeded on the evidence of Ms Small, which - as the statement had not been questioned by the Claimant and no issue had been raised in submissions as to its content - it was entitled to do. Even if the ET had looked at those other documents (which the Claimant had not asked it to do), these would not have contradicted Ms Small’s evidence that Unum had simply taken over from Sun Life: the policy had not changed and its rules remained the same; it was just a different insurer that was meeting the liability.[47]Those conclusions on the wages claim also answer the appeal in respect of the claim of direct age discrimination. Although an age discrimination claim need not concern a contractual entitlement as such, the Claimant’s case here was put on that basis (see the Claimant’s final written submissions before the ET, at paragraph 8):
“There has never been a case put forward on a basis other than the failure to make contractually owed payments.”
[48]As I consider the ET was right to hold that the Respondent was not contractually obliged to make the payments in question to the Claimant, it follows that it did not fail to make those payments on a directly age discriminatory basis.[49]Taking the other nuance of the Claimant’s case on this point, the Respondent equally did not directly discriminate against the Claimant because of age in not extending to her the benefits under the new Unum policy. She did not benefit from the new Scheme because she was already the recipient of benefits under the old, and did not meet the conditions of the new Scheme because she was not working in the period immediately before any potential claim under it. That was not direct discrimination because of the Claimant’s age but simply a distinction between those employees who were already receiving benefits and not in work and those who were not in that position. Further, and for completeness, I am unable to see that the additional ground raised for the first time on appeal can take the matter any further. Obviously, the ET did not err in law by failing to consider it, because it was not pursued before it. Even if the ET was obliged to itself think up possible ways in which the Claimant might put her case (and I do not think that it was) the answer would inevitably be the same. The Respondent was not treating the Claimant less favourably because of her age. The only difference in treatment arose as a result of the insurance company having different policies and treating the Claimant in accordance with the rules of the policy under which she was already a beneficiary.[50]For all those reasons, I dismiss this appeal.