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THE EMPLOYMENT TRIBUNALS
PART TIME WORKER PENSION CLAIMS

INFORMATION BULLETIN - NUMBER 1

Introduction

In view of the importance of these cases and the very large number of enquiries for information received at the offices of the Industrial Tribunals throughout the country, I am taking the unusual step of issuing a series of Information Bulletins detailing progress to date and next steps. The Bulletins will serve the dual purpose of informing both the lead representatives and those representing parties whose cases are currently stayed. Consequently, the former may find themselves being reminded of points of which they are already well aware while the latter may feel they are being overburdened with un-necessary detail. I make no apology for that. I regret that the magnitude of the task of disposing of these cases is such that time does not permit of two editions tailored for their respective audiences.

Progress to Date

The total number of Originating Applications received from part time employees claiming relief in respect of exclusion from occupational is variously estimated at between 45 and 60,000. They are currently being to the Tribunal Regions by the special unit at COlT, an exercise which is likely to go on well into the autumn! All lTls are being served but for the moment Notices of Appearance are not required. All proceedings are being stayed automatically after service pending the determination of out of time and other preliminary points. A preliminary Directions hearing will take place on 19th June in London to determine inter alia the points to be taken and the most appropriate method for disposing of them. Representatives have been invited to attend as per the annexed schedule. I regret that, both because of obvious accommodation problems and in order to avoid the risk of the inevitable chaos if too many lawyers are clamouring to be heard, I am not prepared to extend this list other than for pressing reasons. I am proceeding on the basis that the preliminary issues to be identified at the Directions hearing and subsequently tried, will be common to every case. Once the preliminary issues have reached the end of the appeal process, letters will be sent to all applicants whose claims are in consequence wholly or partly time barred or otherwise doomed to fail, inviting them to show cause why their claims should not be wholly or partly dismissed. If, nonetheless you feel that your clients need to be represented either on 19th June or at the preliminary hearings themselves, please write to me giving full reasons. If you simply wish to ensure that certain points are raised, please communicate in the first instance with the lead representative for your sector. I regret that I am not prepared to invite observers to the preliminary Directions hearing. It is essentially a private hearing and as it would be quite impossible to find room for all who have indicated a wish to attend, the only way in which I can be even handed is to exclude everyone.

Next Steps

In the hope that it will assist the parties at the preliminary Directions hearing on the 19th June - and for the information of other interested parties - I set out below my current thinking on the most efficient method of disposing of these cases and a slightly revised list of potential preliminary points.

I have had letters from a number of organisations which have expressed concern over the concept of lead representation because all employers within a sector may not be in the same position vis a vis their employees. I accept that argument with regard to the later stages of the disposal of these matters. However, I am of the opinion that there are likely to be a number of preliminary points which are common to all applications, or all applications within defined categories. It is those preliminary points only which I propose to deal with through lead representatives and lead cases. Once those preliminary points have been disposed of the next stage will be the consideration of matters common to all cases within each individual pension scheme such as issues of objective justification and any other issues common to all employees seeking admission to that scheme. This is likely, but not necessarily, to mean that cases involving a particular respondent or group of respondents subscribing to the same pension fund, will be heard together. The only exception to this will be where two employers subscribing to the same fund rely on different facts as objectively justifying the exclusion of their part time employees. At this stage there is likely to be little scope for lead representatives or lead cases, each pension scheme necessitating a separate trial. However, in the interests of the speedy administration of justice and removing the uncertainty which I understand these cases are causing to the pensions industry, it is to be hoped that early decisions might have persuasive authority!

I anticipate that at this second stage cases will be heard in all or most tribunal regions. I intend to hear cases in Birmingham, together with my colleague Douglas Crump, in the education, health and local government sectors and probably others. Cases in the private sector will be allocated to the most convenient region, probably that in which the respondents head office is situated. I propose to look at this aspect again in more detail in the light of representations received, jointly with my colleagues in other regions.

My original view was that no common points should be tried until all preliminary points had worked their way through the appeal system. I am now of the opinion that that is unnecessary and time wasting. Except in the event of a batch of cases against a respondent being disposed of entirely by preliminary points, there will remain common points to try. There is much to be said for pressing on with those as soon as possible. Even with the expediting of appeals, which Mr Justice Mummery has agreed to do through EAT and which I hope he will be able to achieve to the Court of Appeal, there is bound to be a delay of several months before the appeal process is exhausted - very much longer if any points are referred to the ECJ.

During the preliminary points stage, and thereafter if it proves convenient to the parties, it will greatly assist the smooth running of these cases if lead representatives will act as representatives for the sector they lead and handle queries from within that sector. This will remove a potentially significant burden from the staff at the Tribunal offices enabling them to concentrate on the rapid disposal of the cases.

After the first two stages, that is preliminary points and common points, I envisage that all surviving cases will be adjourned for possible settlement except where liability is in issue for any reason not covered by either the preliminary or common points. The Tribunal should only be used as a last resort to assess compensation or make declarations in cases which cannot be resolved between the parties.

I hope that I have ensured that at the preliminary directions hearing a complete cross section of pension schemes are represented as follows:

Public sector: education, health, local government

Private sector, non-contributory: banks

Private sector, contributory: electricity supply industry

I would be grateful if any gaps could be drawn to my attention in time to remedy them for 19th June.

Subject to representations on 19th June, I intend to set aside some two to three weeks in Birmingham in September or October (I am assuming that August will not be convenient to the parties although it would be convenient to me) to take the following points (and any others agreed on 19th June) under Rule 6 of the Industrial Tribunals (Constitution and Rules of .Procedure) Regulations 1993, or otherwise determine them as preliminary issues. I propose to sit without members. It must be born in mind that although the preliminary directions hearing will be issue rather than case related, hearings are required to be of issues raised in identified cases. My clerks and I would greatly appreciate the help of the parties in identifying cases which actually demonstrate the preliminary points to be argued.

I have endeavoured to arrange lead representation to ensure that such questions as liability for successive periods of service can be accommodated. Thus in the education sector I have asked Birmingham LEA to lead and Norton Rose (who represent further education corporations) to act on behalf of a further education corporation yet to be identified which was formerly a college of further education under the control of Birmingham LEA. A similar arrangement applies in the health sector.

The Preliminary Points.
1. To determine whether claims falling within any or all of the following categories are out of time and generally to determine the time limit(s) applicable.

a) employment with last employer against whom a claim is made ended more than six months prior to the commencement of proceedings.
b) employment still continuing (or ended less than six months before commencement) but the period in respect of which the claim is made ended more than:

i. 3 months
ii 6 months
iii. any earlier period before commencement of proceedings

c) the claim is otherwise in time but there has been a break in the continuity of employment, whether periods of employment prior to the break may form the basis of a claim.

[It may be that some cases in which a break in service is alleged will have to be heard individually by a tribunal to determine the point. The great majority of cases in which the point has been or is likely to be raised is that of part time teachers employed by the term or academic year with (at least) the summer holiday period allegedly breaking continuity. There are therefore at least two potential preliminary issues here; the effect of a break in continuity generally, and, if it is held that a claim does not lie in respect of periods of employment prior to the break, whether the summer holidays broke continuity for those teachers. There may be other occupations of a similarly seasonal nature in respect of which claims are being made where a similar preliminary point could be tried. I am not so far aware of any]. I do not believe it necessary to make specific mention of EMMOTT and analogous or related points such as a broad general discretion to accept late claims as I take them to be included in the foregoing. These time points will necessarily encompass such argument as there may be on whether the claims are brought under Art 119 EEC, one or more Directives, the Sex Discrimination Act or the Equal Pay Act and the extent of the Tribunals jurisdiction in consequence.

2. Whether a claim lies in respect of;

a) periods of service prior to 8th April 1976 (date of judgement in DEFRENNE -v- SABENA [1976] ECR 455 ECJ)
b) periods of service prior to 13th May 1986 (date of judgement in BILKA-KAUFHAUS -v- HARTZ [1986] IRLR 317 ECJ)
c) periods of service more than two years prior to the date of claim (by analogy with sec 2(5) Equal Pay Act 1971

3.Whether part time male employees are eligible to bring claims

4. Whether the Secretaries of State for Education, Health and the Environment are properly joined as Respondents and the nature of any orders that may properly be made against them.

5. In health sector cases;

a) whether time should be regarded as running against all NHS employees past and present from 1st April 1991, the date upon which all employees became eligible to join the pension scheme, and if so whether all claims in that sector are now time barred.
b) if not, whether liability for past service transferred from RHAs/ AHAs to NHS Trusts on the operational date for the purposes of the National Health Service and Community Care Act 1990.

6. In education sector cases;

(a) whether the Teachers Superannuation Scheme should be joined as an additional respondent
(b) whether liability for years of service prior to 1 April 1993 transferred to further Education Corporations or remains with LEAs

7. Generally to agree a timetable for entering Notices of Appearance and other matters leading to the Rule 6 and other preliminary hearings.

8. If possible to identify issues which may have to be referred to the European Court of Justice.

Footnote

It would enormously assist my clerks, and those assigned to the nominated chairmen in other Regions, if enquiries could be kept to an absolute minimum. You may rest assured that you will be kept informed of all important developments through future editions of this Bulletin. With the Presidents permission I have spoken to some if not most lead representatives by telephone in an endeavour to expedite matters as much as possible. After the preliminary directions hearing I think it would no longer be appropriate for me to do so other than in exceptional circumstances

John Macmillan
The Industrial Tribunals Birmingham
31st May 1995