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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Sterritt & Ors v Stewarts Supermarkets Ltd [2007] NIIT 4208_94 (10 May 2007) URL: http://www.bailii.org/nie/cases/NIIT/2007/4208_94.html Cite as: [2007] NIIT 4208_94 |
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CASE REFS: 04208/94SD/EP & Others
(See attached schedule)
CLAIMANTS: Joan Sterritt & Others
(See attached schedule)
RESPONDENTS: 1. Stewarts Supermarkets Ltd
2. Associated British Foods Pension Trustees Ltd
NOTICE PARTIES: 1. Tesco Stores Ltd
2. Tesco Pension Trustees Ltd
The decision of the tribunal is that the application made by the claimants to review the decision of the tribunal registered and issued to each of the parties on 10 March 2006, dismissing the first notice party from these proceedings, following withdrawal notified to the tribunal by letter dated 20 February 2006, is refused; the application was made out of time and it is not just and equitable to extend time.
Constitution of Tribunal:
Chairman (Sitting alone): Mr N Drennan QC
Appearances:
The claimants were represented by Mr M Potter, Barrister-at-Law, instructed by Thompsons McClure, Solicitors.
The first-named respondent and the notice parties were represented by Ms N McGrenera, Queen's Counsel, instructed by Alana Jones, Solicitors.
The second-named respondent was represented by Mr G Purvis, Barrister-at-Law with Mr J O'Hara, Queen's Counsel, instructed by Travers Smith, Solicitors.
REASONS
(a) The application made by the claimants to review the decision of the tribunal, registered and issued to the parties on 10 March 2006, dismissing the first notice party, Tesco Stores Ltd ("Tesco"), from these proceedings, following withdrawal notified to the tribunal by letter dated 20 February 2006.
(b) If the application to review was unsuccessful, the application of the claimants to join Tesco as a party to the proceedings.
(c) Further, the application of the claimants to join the second notice party, Tesco Pension Trustees Ltd, to the proceedings.
All the representatives agreed that, although the Notice of Hearing had referred to a pre-hearing review, the hearing, which I was now required to determine, was an application for review by the claimants pursuant to Rules 34 – 36 of the Industrial Tribunals Rules of Procedure 2005, contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 ("Rules of Procedure").
(a) The decision was wrongly made as a result of an administrative error.
…
(d) New evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known or foreseen at that time.
(e) The interests of justice requires such a review.
"…
Having made enquires of our clients, we understand that the named respondent, Stewarts Supermarkets Ltd, is still on the register of companies but is not trading.
We have been informed that on 28 February 1998, the assets of Stewarts Supermarkets Ltd were transferred to Tesco Stores Ltd and understand that the contracts of employment of all the above seven applicants were transferred to Tesco Stores Ltd on or about that date.
As the applicants transferred to employment of Tesco Stores Ltd, it would appear appropriate that Tesco Stores Ltd should be joined to the proceedings as a respondent pending the determination of the question of effect of a relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations as regards the liability of the transferor and of the transferee.
If Tesco Stores Ltd is to be joined as a party to the proceedings, we would request leave to submit notices of appearance on behalf of Tesco Stores Ltd. We would also suggest that the hearing of these cases be stayed pending the determination of the effect of a TUPE transfer in the test cases in the English tribunals."
The tribunal then ordered that Tesco be joined to the proceedings by Order dated 19 November 2001 and issued to the parties on 1 December 2001.
"…
1. All seven employees were employed by Stewarts Supermarkets Ltd (SSL) at the relevant time.
2. All seven employees were denied access to membership of the occupation pension scheme operated by SSL on the grounds that they were part-time employees.
3. All seven employees became entitled to join the occupational pensions scheme when they became full-time employees or in 1993, whichever was earlier.
All the employees except one (Ms Brown) did join the pension scheme when they became eligible to do. All of them were members of the pension scheme by 1994, except for Ms Brown who refused to join the scheme.
4. All the employees (except Ms Brown) were members of the scheme by the time they submitted their complaints to the tribunal.
5. In 1997, Tesco Plc purchased the shares of SSL.
6. On 28 February 1998, SSL transferred all its assets, business and employees to Tesco Stores Ltd.
7. The whole of the business previously operated by SSL together with its assets and its workforce transferred to Tesco, the Transfer of Undertakings (Protection of Employment) Regulations 1981 apply to the transaction.
8. With effect from 28 February 1998 Tesco Stores Ltd became the employer of the employees.
9. Under Regulation 7 of the TUPE Regulations, the liabilities of the transferor, (SSL) under the contracts of employment relating to an occupational pension scheme do not transfer to the transferee (Tesco).
10. Prior to 28 February 1998, the employees were employed by SSL. Any liabilities that SSL might have because these employees were not admitted to its occupational pension scheme will not transfer to Tesco and remain with SSL.
… ."
It appears that this letter, at some date between January 2005 and May 2005, came into the possession of the claimants' solicitors. There is no issue how this came about. The claimants' solicitors, by letter dated 13 May 2005, wrote to DLA, the solicitors for Tesco, to clarify, inter-alia, the relationship of Tesco Stores Ltd to Tesco Plc, whom the solicitors for claimants had also asked to be joined to the proceedings. In addition, the said letter concluded:-
"We would now formally request that you provide discovery of:-
(1) all relevant documents in relation to the series of transactions referred to at paragraphs 5, 6 and 7 of the letter of 27 January 2005.
(2) All documents which are or may become relevant in relation to this matter to include all of those documents which the respondent intends of rely upon at the hearing of this application."
The DLA responded to the said letter in a letter dated 28 October 2005. Much of what was stated in the letter dated 27 January 2005 was repeated in this letter. In connection with this application for review, the counsel for the claimants placed considerable reliance upon the contents of the letter dated 28 October 2005. Under the circumstances, it is necessary to set out the letter in some detail. DLA did not agree a pre-hearing review was necessary:-
"…
The undisputed facts are as follows:-
1. All the relevant claimants were employed by Stewarts Supermarkets Ltd.
2. The claimants were denied access to membership of the occupational pension scheme operated by Stewarts Supermarkets Ltd on the grounds that they were part-time employees.
3. All the claimants (except Ms Brown) were members of the Stewarts Supermarkets Ltd pension scheme by 1994. Ms Brown refused to join the scheme.
4. In 1997 Tesco Plc purchased the shares of Stewarts Supermarkets Ltd.
5. In 1998, Stewarts Supermarkets Ltd transferred all its assets, business and employees to Tesco Stores Ltd, a transaction to which the Transfer of Undertakings (Protection of Employment) Regulations 1981 apply. Is it the claimants' case that they did transfer to Tesco Stores Ltd or that they did not?
If they did transfer, Tesco has no liability for any exclusion of the claimants from the pension scheme prior to the transfer (Regulation 7 TUPE).
If, on the other hand, the claimants maintain that they did not transfer to Tesco, there can be no liability on that company for the exclusion of the claimants from the occupational pension scheme of their continuing employer.
Whatever the claimants' contention, it seems clear from the reasons stated above that no liability for the exclusion of the claimants prior to 1994 from the occupational pension scheme of their employer will or can attach to Tesco.
In those circumstances, we would suggest that the claimants' claims against Tesco be withdrawn.
We would reiterate that we do not consider that a pre-hearing review is necessary. If your clients persist with such an application, we will reserve the rights to seek costs against them.
… ."
By letter dated 6 February 2006, DLA wrote to the tribunal stating that it was their view there could be no claim in this matter against Tesco and stating, inter-alia, "if, as we hope, the claimants decide not to proceed with their claim against Tesco, we would ask that the cases against Tesco Stores Ltd be dismissed; if on the other hand, the claimants persist in their claim against Tesco Stores Ltd, request that a Case Management Discussion by telephone be held to determine the way forward."
"For the avoidance of doubt we would confirm that:-
• we have withdrawn the claims against Tesco Stores Ltd (by way of our letter 20 February 2006);
• we wish to proceed against Stewarts Supermarkets Ltd;
• we wish to add ABF Pension Scheme as a respondent (as requested in our letter of 6 May 2005 – copied enclosed)."
"…
In relation to your particular case, while the union is very determined to do everything possible to pursue this matter on your behalf, we can only pursue entitlements that have a sound legal basis. Unfortunately, after much consideration and having taking further advice from our national expert on pension cases and a legal opinion from a barrister, we have reluctantly concluded that there is no case to be made against Tesco. This is because in strict legal terms any responsibility for any pension rights you may have had never passed to Tesco but rather remained with Stewarts and their (ABF) pension fund. In these circumstances, and on our advice, your union, USDAW, has very reluctantly concluded that it cannot continue to support any case against Tesco, as to do so would not only involve unjustifiable expenditure on legal costs but also risk substantial legal costs being awarded to Tesco against the union.
Accordingly, as discussed and agreed by telephone, we will now withdraw your claim against Tesco."
Further, there was no evidence produced to the tribunal, in connection with this application for review, to suggest that prior to the giving of the said advice by the claimants' solicitors, the claimants were specifically consulted; and instructions obtained, about the issues raised in the correspondence by DLA and, in particular, their response to the specific matters raised by DLA in their letter dated 28 October 2005; or that enquiries were made of each of the claimants about what documents (if any) they had in their possession and/or what documents (if any) they might or might not have signed in relation to the matters referred to in DLA's correspondence.
1. Whether ABF Pension Trustees Ltd is a proper party to these proceedings?
2. If not who is the correct respondent?
The pre-hearing review to consider the above issue was arranged for hearing on 12 October 2006, as set out in the Notice of Hearing dated 7 August 2006. By letter dated 21 September 2006, the solicitors for the second-named respondent wrote to the solicitors for the claimants asking them to set out in writing the basis upon which it was contended that the claimants could bring a claim against the second-named respondent. The pre-hearing review listed, for 12 October 2006, was adjourned (by consent) to allow the parties and their representatives to prepare and exchange detailed submissions in relation to their respective positions in relation to the issues to be determined at the pre-hearing review; and it was further agreed, at a Case Management Discussion on 12 October 2006, that a further Case Management Discussion would be held 16 November 2006 to give case management directions/orders as might be necessary in relation to the said pre-hearing review. However, at the Case Management Discussion on 16 November 2006, counsel for the claimants indicated that, arising out of information documents etc which his instructing solicitors had received from the solicitors for the second-named respondent, he had been instructed to make an application to join Tesco in these proceedings, pursuant to Rule 10(1)(k)(r) of the Rules of Procedure. As set out in the record of these proceedings, dated 1 December 2006, the claimants' representative acknowledged that Tesco had previously been a party to the proceedings but had been dismissed from the proceedings under the circumstances, as previously set out in this decision. In addition, he also accepted that neither the parties nor the tribunal had been put on notice of this application pursuant to Rule 11 of the said Rules of Procedure. A direction was given by the Chairman that any application which the claimants wished to make must be made on or before 24 November 2006. By letter dated 24 November 2006, the claimants' representative made an application, inter-alia, for a Review of the said decision dismissing Tesco, pursuant to Rule 34 and in particular Rule 34(3)(d) and (e) of the said Rules of Procedure. The claimants also indicated that they were seeking an extension of the 14 day time limitation period under Rule 35.
"2. The sale of Stewarts Supermarkets Ltd to Tesco Stores Ltd.
2.1 Pursuant to the terms of the sale and purchase agreement between ABF Investments Plc, Tesco Plc and Associated British Foods Plc dated 21 March 1997, the entire issued share capital of Stewarts Supermarkets Ltd was sold to Tesco Stores Ltd. The transaction became effective on 8 May 1997.
3. Transfer of pension benefits from the scheme to the Tesco Plc Money Purchase Pension Scheme.
3.1 In September 1997, the claimant was offered the opportunity of joining Tesco Plc Money Purchase Pension Scheme (the Tesco Scheme).
3.2 At this time, the claimant received a letter from Tesco Pension Trustees Ltd explaining that on joining the Tesco Scheme, the claimant had three choices in respect of her rights under the ABF Scheme, namely:
3.2.1 To transfer her ABF pension to the Tesco Scheme on special terms agreed between the Trustees of the two schemes on the advice of their actuaries;
3.2.2 To defer her ABF pension for past service, in which case she would remain entitled to benefits for past service on normal ABF terms, as if she had left service on 4 October 1997; or
3.2.3 To transfer her ABF rights (on normal ABF terms) to a personal pension scheme or similar arrangement.
3.3 In the same letter, it explained to the claimant that if she chose to transfer her ABF pension to the Tesco Scheme she would be credited with an enhanced transfer value.
3.4 On (relevant date inserted, as appropriate, for each claimant) the claimant signed and dated a form addressed to the Trustees of the ABF Scheme stating the following:-
"I require you to transfer the value of my rights to the benefits under the Associated British Foods Pension Scheme to the Tesco Plc Money Purchase Scheme.
I understand that, following this transfer, I will be credited with an enhanced transfer value under the Tesco Scheme, as described in the letter dated September 1997 from Tesco Pension Trustees Ltd. … I understand that, following the transfer, that I nor my spouse or dependents will have any further entitlement under the ABF Scheme
… ."
There was no dispute that Ms Brown did not sign such a form. Between September and November 1997, all the claimants, other than Ms Brown, transferred the value of their benefits under the ABF Scheme to the Tesco Pension Schemes (see further Paragraph 3.3 of this decision).
The said transfer document included the option set out at paragraph 3.4 but also the alternative option:-
"(2) I do not wish to transfer my rights from the ABF Pension Scheme to the Tesco Plc Money Purchase Pension Scheme on the special terms offered. Please arrange for the administrator of the ABF Scheme to contact me with details of my benefits on leaving the scheme as of 4 October 1997."
The said transfer form allowed each claimant to indicate their choice in the relevant box.
I am satisfied that, in deciding whether to exercise the power to extend the time limit on the above grounds, it is necessary to have regard to the terms of the overriding objective, as set out in Regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, to deal with cases justly. Dealing with a case justly includes, so far as practicable:-
(a) ensuring the parties are on an equal footing;
(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;
(c) ensuring that it is dealt with expeditiously and fairly; and
(d) saving expense.
However, I am also satisfied the discretion given to a tribunal to extend time on the just and equitable grounds is a wide and unfettered discretion. Under the discrimination legislation, a similar provision is to be found to allow a tribunal to consider a claim that has been presented to the tribunal outside the normal three month limit 'if in all the circumstances of the case it considers that it is just and equitable to do so'. In my opinion, the absence of the words 'in all the circumstances of the case' in Rule 35(1) of the Rules of Procedure is not of particular significance. As was seen in the case of Hutchison v Westward Television Limited [1977] IRLR 69, this merely entitles the tribunal to take into account anything which it judges to be relevant. However, although case law, interpretating the above provisions under the discrimination legislation, is clearly relevant and to be taken into account in connection with the exercise of the discretion to extend time on just and equitable grounds under Rule 35(1) of the Rules of Procedure, it must be remembered that such case law is considering an extension of time for bringing proceedings, in circumstances where the normal period is three months; whereas Rule 35 relates to an extension of time in relation to a decision made by a tribunal, where the normal period of time in which to make an application is only 14 days.
In the case of Robertson v Bexley Community Centre [2003] IRLR 434 (a discrimination case considering extension of time to bring proceedings) the Court of Appeal made clear that an Employment Tribunal has a very wide discretion in determining whether or not it is just and equitable to extend time. It is entitled to consider anything that it considers relevant. However, the Court stressed that time limits are exercised strictly in employment cases; and that when tribunals consider their discretion to consider a claim out of time on just and equitable grounds, there is no presumption that they should do so unless they can justify failure to exercise the discretion. Rather, the Court made clear, on the contrary, a tribunal cannot hear a complaint unless the claimant convinces it that it is just and equitable to extend time. The Court held that the exercise of discretion is thus the exception rather than the rule.
As the above case emphasises the onus at all times remains with the claimant. The claimants did not give any evidence; rather Mr Potter sought to persuade the tribunal to extend time, on the basis of his submissions and in light of the documents and events set out in the preceding paragraphs of this decision.
(a) the length of and reason for the delay;
(b) the extent to which the cogency of the evidence is likely to be affected by the delay;
(c) the extent to which the parties sued had co-operated with any request for information;
(d) the promptness with which the claimant acted once he or she knew of the facts giving rise to the course of action;
(e) the steps taken by the claimant to obtain professional advice once he or she knew of the possibility of taking action.
Whilst there is no doubt that Tesco's representatives, in their letter of 28 October 2005, were strenuously denying liability, as they were entitled to do, I do not accept that the threat of costs made in the letter was sufficient, in itself, to prevent the claimants' representatives taking the above steps, before deciding whether it was proper to withdraw the said claims. Mr Potter submits that the said letter was a misrepresentation and, in particular, in light of the further information provided in the second-named respondent's response, which had not been referred to by Tesco's representatives in their said correspondence to the claimants' representatives. I do not accept that the letter can be considered a misrepresentation. It may be argued it may not have set out all details of what had taken place between the various parties on foot of the various transactions/ agreements. But, in my judgment, it sets out sufficient to allow the claimants' representatives to properly take the steps, to which I have made reference above; and which they ignored, in my judgment, at their peril. In particular, although the letter did maintain Tesco's denial of liability, it invited the claimants to challenge the issues raised by Tesco's then representatives. But again, the challenge was not taken up.
Despite the foregoing, no further steps were taken by the claimants' representatives, even after the service of the second-named respondent's response to the claimants by the tribunal by letter dated 3 July 2006. If there had been any difficulty with the terms of the letter dated 28 October 2005, there could be no doubt the response referred expressly to the 1997 agreement and the transfer of pension benefits that subsequently took place. Again, despite Mr Potter's submission of the importance of what was contained in this document, no attempt was made to seek to discovery from the second-named respondent or to give any indication of the necessity to make the application for review of the decision dismissing Tesco. Again, there was no evidence that the claimants were consulted about the various matters in which they were involved, as set out in the response of the second-named respondent, including the reference to the various letters/ option forms sent to the claimants and the issue of transfer of benefits by them.
Although, by letter dated 20 July 2006, the claimants' representatives were informed that a pre-hearing review to consider the involvement of the second-named respondent to these proceedings, which was subsequently arranged for 12 October 2006, at which the terms of the second-named respondent's response was clearly going to be relevant, no issue was raised by the claimants' representatives in relation to the claimants' claims against Tesco and/or the necessity to make an application for review of the decision dismissing the claims against Tesco. Indeed, it was second-named respondent's representatives on 10 November 2006 who provided voluntary discovery to the claimants' representatives – in connection with the said pre-hearing review, which was to be case-managed on 16 November 2006. It was only at this Case Management Discussion that the first indication was given by the claimants' representatives of this application, which resulted in the formal application made on 24 November 2006. No evidence was given or explanation provided, despite my raising the issue with the claimants' representative for the absence of any action in relation to the making of this application for review - from the service of the second-named respondent's response in early July 2006 to the Case Management Discussion on 16 November 2006.
In the above circumstances, I have concluded that in the exercise of my discretion, I should not extend time on the just and equitable grounds. The application for review of the said decision is therefore refused and the decision is confirmed.
Chairman:
Date and place of hearing: 10 – 11 May 2007, Belfast
Date decision recorded in register and issued to parties:
SCHEDULE
CLAIMANT CASE REF No.
Joan Sterritt 04208/94SD
04209/04EP
Laura Brown 10135/95SD/EP
Patricia Kincaid 10143/95SD/EP
Hilary Whiteside 10152/95SD/EP
Patricia Simpson 04345/95SD/EP
Margaret McVeigh 00027/95SD/EP
Joan Locke 03719/95SD/EP