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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Newham v Skingle [2003] EWCA Civ 280 (20 February 2003) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2003/280.html Cite as: [2003] IRLR 359, [2003] ICR 1008, [2003] Pens LR 79, [2003] OPLR 187, [2003] EWCA Civ 280, [2003] 2 All ER 761

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR JUSTICE JACOB)

		Royal Courts of Justice Strand London, WC2
		20th February 2003

1. LORD JUSTICE ALDOUS: I invite Lord Justice Jonathan Parker to give the first judgment.
2. LORD JUSTICE JONATHAN PARKER: This is an appeal by Mr Gary Skingle against an order made by Jacob J on 23 May 2002 allowing an appeal by The London Borough of Newham ("the Council") against a determination made by the Pensions Ombudsman (Mr David Laverick) on 30 January 2002 on a complaint by Mr Gary Skingle. Permission for a second appeal was granted by Robert Walker LJ on 21 June 2002, limited to a single ground of appeal the nature of which I shall indicate in due course.
3. From 1991 until his retirement on health grounds on 31 January 1998, Mr Skingle was employed by the Council as a Site Supervisor at Lister Community School. Prior to 1991 he had been employed by the Council as a school caretaker. In his capacity as Site Supervisor he regularly worked overtime, supervising out-of-hours lettings of the school premises. By a letter dated 5 February 1998, the Council notified Mr Skingle of his pension entitlements under the Local Government Pension Scheme ("the Scheme"), of which he is a member. The letter also informed Mr Skingle that if he was dissatisfied with any decision regarding his benefits under the Scheme he could appeal to the Chief Executive of the Council, and thereafter to the Secretary of State for the Environment, Transport and the Regions.
4. In calculating Mr Skingle's pensionable pay (that is to say his final earnings, on which his pension was based), the Council left his overtime earnings out of account. Mr Skingle was dissatisfied with that decision. He contends that, under the Local Government Pension Scheme Regulations 1995 ("the 1995 Regulations"), his overtime earnings must be brought into account in calculating his pensionable pay. He accordingly appealed to the Chief Executive. The Chief Executive, in a decision which was promulgated on 22 May 2000, concluded that under the terms of the 1995 Regulations the calculation of pensionable pay excluded payments for letting duties. He went on to say that that was standard practice which applied to all Site Supervisors who undertook such duties. Mr Skingle appealed to the Secretary of State. The Secretary of State agreed with the Chief Executive. Mr Skingle then complained to the Pensions Ombudsman, on grounds of maladministration. By his determination, the Pensions Ombudsman upheld Mr Skingle's complaint, concluding that under the terms of the 1995 Regulations Mr Skingle's overtime earnings were to be brought into account in calculating his pensionable pay.
5. The Council appealed against the Pensions Ombudsman's decision to the High Court pursuant to section 151(4) of the Pension Schemes Act 1993, which provides for an appeal to the High Court "on a point of law". The respondents to the proceedings in the High Court were Mr Skingle and the Pensions Ombudsman. The Pensions Ombudsman has taken no part in the proceedings. By his order dated 23 May 2002 Jacob J allowed the Council's appeal. That is the order against which Mr Skingle now appeals to this court.
6. The 1995 Regulations were replaced by the Local Government Pension Scheme Regulations 1997 (which came into effect on 1 April 1998), but it is common ground that there is no material difference between the two sets of regulations, and that the 1995 Regulations are the relevant regulations for present purposes. It is also common ground that the issue as to whether or not Mr Skingle's overtime earnings are to be brought into account in calculating his pensionable pay depends upon whether the overtime earnings are "remuneration" for the purposes of the 1995 Regulations. The word "remuneration" is defined in regulation C2 of the 1995 Regulations. Paragraphs (1) and (2) of regulation C2 are in the following terms (so far as material):

"C2. (1) Subject to paragraphs (2) and (3) ..., in these regulations 'remuneration', in relation to an employee, means the total of-

(a) all the salary, wages, fees and other payments paid to him for his own use in respect of his employment, and

(b) the money value of any benefits provided for him by reason of his employment,

and any other payment or benefit specified in his contract of employment as being a pensionable emolument.

(2) 'Remuneration' does not include-

(a) payments for non-contractual overtime; ...

(3) ..."

7. The 1995 Regulations contain, needless to say, no definition of the expression 'non-contractual overtime'.
8. The Council contends that Mr Skingle's overtime earnings were 'payments for non-contractual overtime', and thus excluded from the definition of 'remuneration' by subparagraph (2)(a) of the regulation. Mr Skingle contends that his overtime earnings were not 'payments for non-contractual overtime' since under the terms of his employment he was obliged to supervise out-of-hours lettings.
9. In agreeing with the Council, the Chief Executive and the Secretary of State concluded that Mr Skingle was not obliged to work the overtime in question. In upholding Mr Skingle's complaint the Pensions Ombudsman also concluded that Mr Skingle was under no obligation to work the overtime, but he concluded that the overtime was nevertheless not 'non-contractual overtime' for the purposes of regulation C2(2)(a) since it was remunerated at contractually agreed rates.
10. Allowing the Council's appeal, Jacob J concluded that the Pensions Ombudsman had erred in law in his construction of regulation C2(2)(a), in that overtime which the employee is not obliged to work is 'non-contractual overtime'. Jacob J also dismissed a cross-appeal by Mr Skingle (raised by a respondent's notice) whereby Mr Skingle contended that he was obliged to work the overtime in question. Having considered Mr Skingle's terms of employment Jacob J rejected that contention, saying (in paragraph 20 of his judgment) that he could see no basis upon which Mr Skingle could have been obliged to work the overtime. He refused Mr Skingle permission to appeal.
11. Mr Skingle applied to this court for permission to appeal, on the ground that the judge had misconstrued the expression 'non-contractual overtime'; and secondly, in the alternative, that the overtime in question was compulsory in nature in that the Council could have compelled him to work it. He also contends, by his grounds of appeal, that a document entitled Site Supervisors' Agreement formed part of his terms of employment. I shall refer to that document later in the judgment.
12. Robert Walker LJ granted permission to appeal on the papers, but limited to the issue whether there was evidence on which the Pensions Ombudsman could conclude that Mr Skingle was under no obligation to work overtime during out-of-hours lettings of the school premises. Robert Walker LJ expressed his reasons for granting such permission thus:

"The Ombudsman made a clear finding that Mr Skingle was not obliged to work overtime. If that factual conclusion was correct, the Ombudsman was clearly wrong in his overall conclusion as to 'non-contractual' overtime [i.e. that the overtime was not 'non-contractual overtime']. But it is arguable that the finding was not justified on the evidence and that the judge should have upheld the respondent's notice. The point is of some general importance and merits a second appeal."

13. Thus, the one issue in respect of which permission to appeal has been granted is whether Mr Skingle's terms of employment obliged him to work the overtime in question. If he was so obliged, then (in accordance with Jacob J's decision, in respect of which there is no permission to appeal) the overtime in question was not 'non-contractual overtime' within the meaning of regulation C2(2)(a) and accordingly did not fall to be excluded from the definition of 'remuneration' in paragraph (1) of the regulation.
14. The Pensions Ombudsman referred to three documents as forming part of Mr Skingle's terms of employment: first, a document entitled "Contract of Employment for APT&C Staff" dated 17 June 1991 and signed by Mr Skingle ("the Contract Document"); second, a job specification issued by the Council relating to the job of Site Supervisor ("the Job Specification"); and third, a document issued by the Council headed "Site Supervisor", with a sub-heading "Purpose of Job" ("the Purpose of Job Document").
15. I turn first to the Contract Document. It is entitled "Contract of Employment for APT&C Staff subject to the agreement with the National Joint Council for Local Authorities Administrative, Professional and Technical Services and the Employment Protection (Consolidation) Act 1978". It then states Mr Skingle's name. Underneath that, against the legend "Post Title" are the words "Site Supervisor". Further down the page one finds:

"Overtime rate: overtime is payable at a locally negotiated rate, currently £3.85 per hour."

Later in the document, under the heading "Conditions of Service" one finds this:

"All conditions of Service will be set out in the APT & C Conditions (Purple Book) subject to the following amendments:

1. Hours per week: 36 basic hours within the overall band 6.00 am to 6.30 pm ..."

16. Later one comes to a heading "Overtime", where one finds this:

"Authorised overtime should be submitted to the Personnel Office no later than 19th of each month for payment the following month. Any overtime claim forms not received on the stated deadline date will not be paid until the two months following."

17. I turn next to the document referred to in the Contract Document as 'the purple book'. Paragraph 2.1 of the purple book, under the heading 'Working Arrangements' reads as follows (so far as material):

"The arrangement of the working week shall be determined by the authority in consultation with the recognised unions with a view to reaching agreement."

18. Paragraph 2.3 of the purple book deals with rates of pay for employees who are required to work additional hours (i.e. overtime).
19. I turn next to the Job Specification. The Job Specification describes the purpose of the job in the following terms:

"To be responsible to the head(s) of establishment for the maintenance, cleaning, security, heating, health and safety and other general site services within the premises."

20. There follows a section headed 'Duties and Responsibilities'. These include the following:

"4. To be responsible for ensuring the safe and efficient operation of all mechanical, electrical, heating and water services on the premises, including when appropriate lifts and swimming pools. To take appropriate action to ensure and monitor proper and safe levels of lighting, heating and ventilation. ...

6. To be responsible for the overall security arrangements of the premises including ensuring that staff are aware of the Council's guidance and procedures on security and the use of alarm systems, that there is an appropriate system of keyholding management, that periodic reviews of site security are conducted and that appropriate action is followed through; to liaise with education Office and other Council staff as appropriate. Responsibility for the carriage of school monies to and from banks as required in accordance with Council procedures. ...

9. To ensure that appropriate arrangements are made and records maintained for authorised users of the sites facilities and buildings. To manage and operate systems of staff cover for lettings and other out-of-hours usage of the premises.

10. To work on own initiative, particularly during the school holiday periods and in emergencies, taking all necessary action to ensure the security and maintenance of the premises/site; ..."

21. At the conclusion of the section headed "Duties and Responsibilities" there is the following note:

"The duties of this post may involve working outside normal hours, including weekends and bank holidays, as necessary."

22. The Purpose of Job Document is in substantially the same form as the Job Description, but it omits the note at the end.
23. The Pensions Ombudsman made no express finding as to whether the further document entitled "Site Supervisors' Agreement", to which I referred earlier, also formed part of Mr Skingle's contract of employment, although he based his reasoning on a provision to be found in it. Jacob J concluded, in paragraph 18 of his judgment, that in the absence of such a finding by the Pensions Ombudsman it was not open to him to hold that it did form part of Mr Skingle's contract of employment. Jacob J also recorded that it had not been contended otherwise by Mr Randall (who appeared before the judge for Mr Skingle, as he does before us). Before us, Mr Randall explains that it has throughout been Mr Skingle's case that the Site Supervisors' Agreement forms part of his contract of employment, and that before the judge he had proceeded on the basis that the Pensions Ombudsman had so found. At all events, he seeks to raise that contention before us. In the circumstances, I should refer at this point to those provisions of the Site Supervisors' Agreement on which Mr Randall seeks to rely.
24. The introduction to the Site Supervisors' Agreement states that it is a locally negotiated collective agreement. Paragraph 3 records that a new role has been agreed for caretaking staff which "may broadly be defined as that of Site Supervisor". It goes on to say:

"It is accepted that the nature of the role [i.e. the role of Site Supervisor] precludes giving an exhaustive list of the actual tasks to be performed."

25. Paragraph 7 of the Site Supervisors' Agreement (which is headed "Overtime") contains the following provisions:

"It is recognised that when working overtime (including lettings) Site Supervisors are carrying out a Caretaking role. In reflection of this fact, overtime will be payable at the abated rates set out in paragraph 5 above.

Caretakers may be expected to work overtime in various circumstances, including:

i) ...

ii) ...

iii) certain uses of buildings out of school day (see 8 below)."

26. Paragraph 8 of the Site Supervisors' Agreement is headed "Use of Buildings Outside School Day". Paragraph 8.1 provides as follows (so far as material):

"8.1. The Authority considers that Site Supervisors have a key role with regard to the security of buildings and sites. Therefore it will be usual practice for Site Supervisors to be present during the use of buildings outside the school day. However it is not always an efficient or appropriate use of resources to have a Site Supervisor present when a building/site is being used. Therefore the head(s) of establishment have discretion to vary this usual practice when at least one of the following criteria apply: ...

8.2. If the use does not meet one of the above criteria, the use will be deemed to be a letting and the following arrangements will apply.

The Site Supervisor will work all the hours of the letting period. They will be present on the building/site, patrolling all appropriate areas, assisting the hirer and users and ensuring adherence to the lettings regulations. If other basic caretaking tasks from the job description are required to be done, these will be carried out during this period.

The minimum period for lettings will be as follows:

Saturday and Sunday: 2 hours.

Monday and Friday: 2 hours unless the letting continues on from the 6.30 pm finish of basic working time in which case the minimum will be half an hour.

...

8.3. This agreement on the use of buildings is on the understanding that heads of establishment will not make unreasonable demands upon an employee's non active time and that no employee will unreasonably refuse to undertake such work as may be required. Reasonable notice will be given of all such use. ..."

27. In setting out details of his complaint to the Pensions Ombudsman, Mr Skingle said this:

"Once I, as senior Site Supervisor, had discharged my obligation to allocate staff cover for lettings, then the Site Supervisor so allocated became contractually obliged ... to work the letting. It is immaterial that I allocated the work to [myself], and there has been no suggestion that such an allocation was improper.

In addition, it is important to note that, for the vast majority of my employment, I had no option but to allocate responsibility for the letting to myself. This was simply because there were no other suitably qualified Site Supervisors (or Assistant Site Supervisors) available to provide staff cover for the letting. ... My obligation to allocate staff cover could only be discharged by allocating the work to myself, thereby creating a contractual requirement to work the letting ... I do not consider that my duty to cover the letting can in any way be considered as voluntary ..."

28. Mr Skingle expanded on this in a witness statement made in support of his complaint.
29. In its response to the Pensions Ombudsman's preliminary conclusions (which reflected his final conclusions), the Council said this:

"Mr Skingle's job did not require him to be present at lettings, etc. or to work overtime in excess of his contractual 36 hours, unless he wished to do so. Mr Skingle would not have been in breach of his contract of employment if he had not covered the lettings himself. However, he would have been in breach of his contractual obligations if he had not made arrangements for cover of the lettings/out-of-hours usage work, as specified in his job description. ...

It is a universal practice in local government for employees' contracts of employment to have a term which permits an employee to work overtime and to be paid at a stated rate. ...

The Council['s] treatment of Mr Skingle's overtime payments as non-pensionable, therefore, is in line with the practice universally applied in local government."

30. Referring to the obligation contained in paragraph 9 of the Job Description, and to the equivalent provision in the Purpose of Job Document, to "manage and operate systems of staffing cover for lettings and other out-of-hours usage of the premises", the Pensions Ombudsman said this:

"My understanding of these words is that the Site Supervisor was contractually bound to arrange cover, not that he necessarily had to provide the cover himself. There was nothing to stop him doing so, and working the overtime (and being paid for it), but he was in no sense contractually bound to provide that cover himself. My understanding that he was entitled to be paid for such overtime work is based on the reference [in the Site Supervisor's Agreement] to such payments being made not at his usual rate of pay but at the abated caretakers' rate ... I agree with [the Council] ... that there was no obligation on Mr Skingle to undertake such work."

31. However, as noted earlier, the Pensions Ombudsman went on to hold that such overtime, albeit (in his view) voluntary, was not 'non-contractual overtime' within the meaning of subparagraph (2)(a) of regulation C2 since (as was undoubtedly the case) it was remunerated at rates prescribed by the terms of Mr Skingle's employment.
32. Allowing the Council's appeal, Jacob J concluded (in paragraph 9 of his judgment) that, as a matter of construction of Mr Skingle's terms of employment, overtime which was not "called for by the contract" - i.e. voluntary overtime - was 'non-contractual overtime' within the meaning subparagraph (2)(a) and was accordingly excluded from the definition of 'remuneration' in regulation C2(1). Thus, in paragraph 10 of his judgment the judge said, referring to regulation C2(2)(a) [2a/14]:

"Some payment for work on the job is clearly to be excluded - and that can only be payment for work done on the job which is not required by the contract - namely voluntary overtime."

As already noted, there is no appeal against that part of Jacob J's decision.

33. Addressing Mr Skingle's contention (raised by his cross-appeal) that he was contractually obliged to work the overtime - i.e. that it was compulsory, not voluntary, overtime - the judge said this in paragraphs 19 to 21 of his judgment:

"19. Neither [the Job Specification nor the Purpose of Job Document] say Mr Skingle had to work overtime when called upon by the employer. Nor did ... the 'purple book' which also contained terms of his employment. The [Purpose of Job Document] says nothing about hours of work. The [Job Specification] merely says (para [9]) that the employee is to 'manage and operate systems of staff cover for lettings and other out-of-hours usage of the premises.' It adds a note 'the duties of this post may involve working outside normal hours, including weekends and bank holidays, as necessary' but that does not necessarily mean extra hours rather than unusual hours. ...

20. Mr Randall [for Mr Skingle] suggests that despite these contractual terms, the [Council] could require Mr Skingle to work overtime, and if he refused that would be a breach of his contract. In practice the position was the lettings out of hours had to be manned and it was Mr Skingle's job to arrange cover. Often he could not find anyone and did the job himself. But I can see no basis upon which he could have been compelled to do that - even if no other employee could be found.

21. Accordingly I think the Ombudsman was right in his construction of the contract, though for the reasons given earlier, the appeal is allowed."

34. The one ground of appeal in respect of which permission to appeal has been granted is expressed in section 7 of Mr Skingle's Appellant's Notice in the following terms:

"On a proper analysis of the relevant contractual documents the overtime worked by the Appellant was compulsory in nature in that, in the final analysis, the Respondent could have compelled him to work that overtime."

35. Mr Skingle further contends, in his grounds of appeal, that the "relevant contractual documents" for this purpose include the document entitled Site Supervisors' Agreement; that Jacob J erred in not making a finding to that effect; and that had he made such a finding "the only permissible option available to him as a matter of law was to find that the overtime worked by the Appellant was compulsory in nature".
36. By a Respondent's Notice the Council invites this court to uphold Jacob J's decision on different or additional grounds: viz. that Mr Skingle has been refused permission to appeal Jacob J's conclusion that, as a matter of law, 'non-contractual overtime' for the purposes of regulation C2 means overtime which the employee is not obliged to work (i.e. voluntary overtime); that Mr Skingle's appeal against the Pensions Ombudsman's conclusion (upheld by Jacob J) that the overtime in question was voluntary overtime is not an appeal on a point of law but an appeal on an issue of fact; and that accordingly this court has no jurisdiction under section 151(4) of the Pension Schemes Act 1993 to hear the appeal. As to the contention that the Site Supervisors' Agreement formed part of Mr Skingle's terms of employment, the Council relies on the fact (recorded by the judge in his judgment, as noted earlier) that that argument was not raised before him.
37. Before us, Mr Randall submits that the correct approach is to construe the relevant terms of Mr Skingle's employment in order to determine whether the Council could (had it wished to do so) have required him to work the overtime in question. So much is accepted by Mr Algazy on behalf of the Council. Mr Randall submits that that is an issue of law, and thus one which we have jurisdiction to entertain. He submits that on the true construction of the documents (which, he submits, include the Site Supervisors' Agreement) Mr Skingle could have been required to work the overtime. He submits that it is immaterial that a pool of other employees might have been called upon to work the overtime if Mr Skingle had not done so. The obligation, he submits, was on Mr Skingle to work the overtime, but if some other suitable person was found who in fact worked it in place of Mr Skingle, the Council would have been in breach of its implied duty to act reasonably had it treated Mr Skingle as being in breach of his contract (see Woods v WM Car Services (Peterborough) Ltd per Browne-Wilkinson J, as he then was, cited in United Bank Ltd v Akhtar [1989] IRLR 507).
38. Mr Randall relies strongly on the note at the foot of the Job Specification, quoted earlier. This note, he submits, makes it clear that Mr Skingle might be (that is to say could be) required to work overtime.
39. As to the Site Supervisors' Agreement, Mr Randall submits that at the very least it must form part of the factual matrix within which the other documents fall to be construed; but if necessary (and he submits it is not necessary) he goes further and submits that it clearly forms part of Mr Skingle's contract of employment.
40. Whilst acknowledging that citation of authority may be of little assistance in resolving a question of construction, he nevertheless seeks support for his submissions in the decision of the Scottish Employment Appeal Tribunal (Lord McDonald MC presiding) in Martin v Solus Schall [1979] IRLR 7. In that case, the employee's contract of employment contained the following provision:

"You will be expected to work such overtime as is necessary to ensure continuity of service."

41. The employer submitted that those words meant something less than a legal obligation. The Tribunal rejected that submission, saying:

"In our view in the present case the document signed by the appellant [the employee] implies that he has accepted the need to work such overtime as was necessary to ensure continuity of service. If as was submitted on behalf of the appellant there was no obligation on him whatsoever to comply with a request to work overtime, no meaning can be given to the very clear words contained in the written terms of his employment."

Later in its judgment, the Tribunal said this:

"We do not consider that the conduct of either party assists us in the legal interpretation of the contract. It is understandable the respondents [the employers] should prefer to achieve their end by persuasion rather than confrontation on a matter of this nature and we do not agree that their conduct or that of the appellant in any way affects the obligation contained in the contract."

42. Mr Algazy submits firstly that there is no jurisdiction to entertain Mr Skingle's appeal, since it does not raise any point of law: rather, he submits, it is an appeal against factual findings made by the Pensions Ombudsman. He relies in this connection on Robert Walker LJ's reasons for granting permission to appeal.
43. That apart, he submits that it is not open to Mr Randall to argue that the Site Supervisors' Agreement is a contractual document, in the sense that its terms form part of Mr Skingle's contract of employment, since that argument was not advanced before the judge. In any event, he asserts that the terms of the Site Supervisors' Agreement are of no material assistance on the question of construction which we have to decide.
44. As to the obligation to manage and operate staffing systems in relation to out-of-hours activities at the school, Mr Algazy submits that that obligation did not extend to requiring Mr Skingle to provide cover himself. As to the note at the conclusion of the Job Specification, Mr Algazy submits that the judge was right to conclude that it refers to irregular or unsocial, rather than to additional, hours. If it alters the terms of the Contract Document in any way, he submits that it merely alters the 'overall band' for basic hours of 6.00am to 6.30pm.
45. Mr Algazy submits that the contractual term in Martin v Solus Schall, which provided that the employee was "expected" to work overtime, is clearly distinguishable from the contractual terms in the instant case as contained in the Contract Document, the Job Description and the Purpose of Job Document. He further submits that it is irrelevant that Mr Skingle felt compelled to work the overtime in question.
46. In the first place, I reject Mr Algazy's submission that there is no jurisdiction to hear this appeal since the appeal is not on a point of law, and is therefore outside section 151(4) of the Pensions Act 1993. I agree with Mr Randall that the issue raised by the one ground of appeal in respect of which permission to appeal has been granted is clearly one of law as to whether, on the true construction of Mr Skingle's terms of employment, the Council was contractually entitled to require him to work the overtime in question. We are not concerned with findings on disputed facts; there were none in this case.
47. Secondly, as to where those terms are to be found, I propose to consider first the Contract Document (which incorporates the purple book), the Job Specification and the Purpose of Job Document without reference to the Site Supervisors' Agreement. In this connection I should say at this point that I have not derived any assistance from the case of Martin v Solus Schall in resolving the question of construction which arises on these documents.
48. Looking, therefore, at the documents in question - and leaving out of account for the moment the Site Supervisors' Agreement - the short question is whether, on their true construction, Mr Skingle was obliged to work the overtime in question.
49. In approaching that question, it is in my judgment irrelevant to consider what the Council, or for that matter the Secretary of State, intended the documents to mean. Direct evidence of intention is plainly inadmissible for this purpose. Nor, in my judgment, is any assistance to be gained from evidence as to the availability or otherwise of others who might be willing (or, for that matter, required) to work the overtime. So much, indeed, is common ground.
50. In my judgment, the clear flavour of the contractual documents (leaving aside the Site Supervisors' Agreement) is that a Site Supervisor such as Mr Skingle may be required to work overtime. The note at the foot of the Job Specification seems to me to make this clear. In my judgment, it is simply not realistic to suppose that (given Mr Skingle's responsibilities for maintenance and security) his terms of employment envisage that, for example, if called upon to attend the school premises in the middle of the night to attend to a burst pipe or to investigate why a burglar alarm has been set off, he would be entitled to refuse to do so. And the same applies, in my judgment, to his attendance at out-of-hours lettings. I accept Mr Randall's submission that the obligation was on him to be present at lettings and other out-of-hours activities, but with the qualification that if he were able to procure that some other suitable person be present in his place the Council would not be in a position to contend that he had breached his contract. In practical terms, Mr Skingle was in my judgment obliged by his contract of employment to work the overtime in question save in so far as he made proper arrangements for someone else to do so.
51. As to the Site Supervisors' Agreement, it seems to me that whilst its provisions may not add very much to the debate, they certainly go nowhere towards negativing the conclusion which I have reached as to the true construction of the other documents. In those circumstances I do not find it necessary to decide whether (and if so to what extent) it strictly formed part of Mr Skingle's contract of employment.
52. It follows from my conclusion that the Council was contractually entitled to require Mr Skingle to work the overtime in question that payment for such overtime is not 'non-contractual overtime' for the purposes of regulation C2(2)(a) of the 1995 Regulations and accordingly must be brought into account as 'remuneration' for the purposes of determining Mr Skingle's pensionable pay. I would therefore allow the appeal.
53. LORD JUSTICE KAY: I agree.
54. LORD JUSTICE ALDOUS: I also agree.

ORDER: Appeal allowed; order of the judge set aside; declaration made that Mr Skingle's overtime earnings, which were the subject of his complaint to the Pensions Ombudsman, amounted to remuneration for the purposes of Regulation C2 of the Local Government Pension Scheme Regulations 1995; costs before the judge assessed summarily at £6,600; costs in this court assessed summarily at £6,600, to include VAT; the respondent to pay 25 per cent of those costs before the judge and 100 per cent in this court; application for permission to appeal to the House of Lords refused.

(Order not part of approved judgment) ______________________________