THE INDUSTRIAL TRIBUNALS

CASE REFS:   04208/94 SD
04209/94 EP
10143/95 SD/EP
10152/95 SD/EP
04345/95 SD/EP
00027/96 SD/EP
03719/95 SD/EP

CLAIMANTS:		Joan S Sterritt
				Patricia Kincaid
				Hilary Whiteside
				Patricia Simpson
				Margaret McVeigh
				Joan Locke

RESPONDENTS:		1.	Stewarts Supermarkets Limited
2.	Associated British Foods Pension Trustees Limited

NOTICE PARTY:		Tesco Pension Trustees Limited

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that:-

 1.	The Order, dated 30 May 2006, joining the second-named respondent to these proceedings should not be set aside.

 2.	The Notice party (Tesco Pension Trustees Limited) is ordered to be joined as a respondent to the proceedings.

Constitution of Tribunal:
Chairman (Sitting Alone):		Mr N Drennan QC

Appearances:
The claimants were represent by Mr M Potter, Barrister-at-Law, instructed by Thompsons McClure, Solicitors.
The first-named respondent was represented by Ms N McGrenera, Queen’s Counsel, instructed by Ms Alana Jones-Campbell, Solicitor.

The second-named respondent was represented by Mr J O’Hara, Queen’s Counsel, and Mr G Purvis, Barrister-at-Law, instructed by Travers Smith, Solicitors.

The notice party was presented by Ms N McGrenera, Queen’s Counsel, instructed by Ms Alana Jones-Campbell, Solicitor.

Reasons

1.1	This hearing was arranged to consider the following issues:-

(i)	Whether the second-named respondent is a proper party to these proceedings; and/or whether the Order joining the second-named respondent should be set aside.

(ii)	The claimants’ application to join the notice party, Tesco Pension Trustees Limited, as a respondent to the proceedings.

The representatives were satisfied that, having regard to the provisions of Rule 17(2) of the Industrial Tribunals Rules of Procedure 2005, set out in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (the 2005 Rules of Procedure) that the said preliminary issues, set out above, should be determined at a pre-hearing review, and not at a Case Management Discussion, as the determination of the said issues involved ‘a person’s civil rights or obligations’.

Rule 17(2) of the Rules of Procedure provides as follows:-

“Any determination of a person’s civil rights or obligations shall not be dealt with in a Case Management Discussion … .”

Although the proceedings were commenced, as set out below, there was no dispute between the parties that the 2005 Rules of Procedure governed the determination of the said issues.

1.2	The representatives of the parties, having been invited to do so, confirmed, at the outset of the hearing, that they did not wish to call any oral evidence; but rather would make oral submissions, on the issues of law arising, on the basis of the facts and history of the matter, insofar as relevant and which were not disputed, as set out in the following paragraphs of this decision.

2.1	By way of background to this matter, each of the claimants commenced proceedings before the tribunal between 1994 – 1996 and, at all material times, were part-time employees of the first-named respondent, Stewarts Supermarkets Limited (‘SSL’).  In the said proceedings, each claimant made a claim against the first-named respondent for a declaration of entitlement to membership of their employer’s occupational pension scheme (‘the ABF Scheme’) from which they claimed they, as female employees, had been unlawfully excluded during their employment by reason of their part-time status.  Responses denying liability were entered on behalf of the first-named respondent, in relation to the said claims of each claimant.  

2.2	Pursuant to the terms of a sale and purchase agreement (‘the agreement’) made between ABF Investments PLC, Tesco PLC and Associated British Foods PLC dated 21 March 1997, the entire issued share capital of Stewarts Supermarkets Limited (SSL) was sold to [Tesco Stores/Tesco PLC].  The transaction became effective on 8 May 1997.  

Between September 1997 and November 1997, the claimants each joined various Tesco pension schemes and transferred their ABF scheme benefits to those said Tesco pension schemes.  

It will be necessary to refer to these matters in more detail elsewhere in this decision.  

2.3	DLA Solicitors who, at that time, were acting for SSL and Tesco Stores Limited, in correspondence to the tribunal by letter dated 23 October 2001 stated, inter alia, as follows:-

“ … Having made enquiries of our clients, we understand that the named respondent, Stewarts Supermarket Limited, is still on the register of companies but is not trading.

We have been informed that on 28 February 1998, the assets of Stewarts Supermarket Limited were transferred to Tesco Stores Limited and understand that the contracts of employment of all the above seven [now six for the purposes of the present proceedings] applicants transferred to Tesco Stores Limited on or about that date.  

As the applicants transferred to employment of Tesco Stores Limited, it would appear appropriate that Tesco Stores Limited should be joined to the proceedings as a respondent pending a determination of the question of the 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 Limited is to be joined as a party to the proceedings, we would request leave to submit Notices of Appearance on behalf of Tesco Stores Limited.  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 Stores Limited be joined to these proceedings, by an Order dated 19 November 2001 and issued to the parties on 1 December 2001.

2.4	Following a series of decisions in Great Britain and known as Preston & Others  v  Wolverhampton Healthcare Trust & Others and, in particular, the decision of the Court of Appeal, known as Powerhouse Retail Limited  v  Burroughs [2004] IRLR 979, it was held, inter alia, that liability for pension benefits did not transfer to the transferee from the transferor.  In light of the foregoing, the representative of the claimants wrote by letter dated 20 February 2006 to the tribunal, withdrawing the claim of the claimants against Tesco Stores Limited.  Following the said withdrawal by the claimants of their claims against Tesco Stores Limited, the tribunal, by Order dated 10 March 2006, dismissed the claimants’ claims against Tesco Stores Limited.

2.5	Subsequently, the claimants made an application, dated 26 November 2006, to review the said Decision dismissing Tesco Stores Limited from the proceedings.  By a decision registered and issued to the parties on 1 August 2007, the said application was refused by the tribunal on the grounds the application had been made out of time and it was not just and equitable to extend time.

2.6	In the said letter, dated 20 February 2006, the claimants’ representative, having confirmed, for the avoidance of doubt, that the claimants wished to continue to proceed against the first-named respondent, also made an application to the tribunal to add the ABF Pension Scheme as a respondent.

By an Order dated 30 May 2006, and issued to the parties on 31 May 2006, the second-named respondent (then referred to as the Trustees and Managers of ABF Pension Scheme) were joined to the proceedings as a party, without prejudice to any application by the newly joined party to set aside the said joinder.

The second-named respondent presented a response to the tribunal, to the claims of each of the claimants on 27 June 2006, in which it denied liability for the said claims.  By letter dated 30 June 2006, it made an application to the tribunal, pursuant to the terms of the Joinder Order, that the second-named respondent was not a proper party to these proceedings and the said Joinder Order should be set aside.

2.7	In addition to making the said application, dated 26 November 2006, to review the decision of the tribunal to dismiss the claimants’ claim against Tesco Stores Limited, as set out in Paragraph 2.5 herein, the claimants also made an application for an Order that the notice party, Tesco Pension Trustees Limited, be joined as a respondent to these proceedings.

2.8	It had been initially intended to hear, at the same hearing, both the claimants’ application for the review of the said Decision dismissing the claimants’ claim against Tesco Stores Limited, and the application of the claimants to join the notice party as a respondent to these proceedings.  However, for the reasons set out in the said Decision, on the application for review, it was decided that the said joinder application to join the notice party as a respondent to the proceedings should be heard at a separate hearing, together with the second-named respondent’s application to set aside the said Joinder Order.

2.9	Arising from the foregoing, this hearing was arranged to determine the issues set out at Paragraph 1.1 above.

3.1	The 2005 Rules of Procedure provide as follows:-

“General power to manage proceedings

10 – (1)	Subject to the following Rules, the Chairman may at any time either on the application of a party or on his own initiative make an Order in relation to any matter which appears to him to be appropriate.  Such Orders may be one of those listed in Paragraph (2) or such other Orders as he thinks fit.  

Subject to the following Rules, Orders may be issued as a result of a Chairman considering the papers before him in the absence of the parties, or at a hearing.  

(2)	Examples of Orders which may be made under Paragraph (1) are Orders –

…

(k)	that any person who the Chairman or tribunal considers may be liable for the remedy claimed should be made a respondent to the proceedings;

…

(r)	that any person who the Chairman or tribunal considers has an interest in the outcome of the proceedings may be joined as a party to the proceedings;

… .”

3.2	Further, under Rule 18(2) of the 2005 Rules of Procedure, at a pre-hearing review, the Chairman may issue any Order in accordance with Rule 10 or do anything which may be done at a Case Management Discussion.  

For the reasons set out in Paragraph 1.1 of this decision, these applications which involved consideration of these said case management orders, were agreed to be determined at a pre-hearing review and not at a Case Management Discussion.

Under the previous Rules of Procedure set out in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004 (the 2004 Rules of Procedure) and, in particular, Rule 19(1) it was provided:-

“A tribunal may at any time, on the application of any person made by notice to the Secretary or of its own motion, direct any person against whom any relief is sought to be joined as a party, and give such consequential directions as it considers necessary.”  (This formulation was first contained in the Rules of Procedure contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 1981 (the 1981 Rules of Procedure).)

It is apparent that this rule bears considerable similarity to the terms of Rule 10(2)(k) under the 2005 Rules of Procedure.  But under the 2005 Rules of Procedure there is also now the additional rule (Rule 10(2)(r)), under which a tribunal can order the joinder of a party who has an ‘interest’ in the outcome of the proceedings.  This would appear to allow a tribunal to join a party even if the remedy sought could not be claimed against the relevant individual or organisation.

However, this additional rule has echoes of Rule 13(1) contained in the Schedule to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 1976 (1976 Rules of Procedure), under which a tribunal only had power to order joinder where a person appeared to the tribunal to be directly interested in the subject of the originating application.

In the case of Sandhu  v  Department of Education and Science [1978] IRLR 208, this was interpreted to mean a person who might have an award made against him.  This resulted in the subsequent revision of the rules under which a tribunal could order joinder of a person against whom relief is sought, as set out above.

3.3	Thus, there are now two relevant rules relating to joinder; and by inclusion of both in the 2005 Rules of Procedure it would appear there is not only a difference in wording but the said rules are not intended to cover the same situation.  It is also interesting to note that Rule 10(2)(k) states:-

“any person who the Chairman or tribunal considers may be liable for the remedy should be made a respondent in the proceedings;”

[Tribunal’s emphasis]

whereas Rule 10(2)(r) states:-

“any person who the Chairman or tribunal considers has an interest in the outcome of the proceedings may be joined as a party to the proceedings.”

[Tribunal’s emphasis]

Thus, it can be argued that there is intended to be a difference, in relation to the exercise of the tribunal’s discretion, by use of the said different wording highlighted above.  It is also to be noted that whereas the old 1976 Rules of Procedure, as interpreted in Sandhu, referred to ‘directly interested’, ‘directly’ is now omitted from Rule 10(2)(r).

3.4	Certainly, in my judgment, Rule 10(2)(r), of the 2005 Rules of Procedure, contemplates a joinder on a different basis to the situation, where a person may be liable for the remedy.  In those latter circumstances, Rule 10(2)(k) of the 2005 Rules of Procedure would appear to be the relevant rule.  It could include the joinder of an interested ‘third party’, even where that interested ‘third party’ also had a potential liability for any remedy.  There does not appear to be any relevant authority in relation to where each of the said rules have been applied.  It has been suggested Rule 10(2)(r) might be appropriate to be used in the situation of a test case, where the outcome has widespread implications; and might allow for the joinder, for example, of the Equality Commission for Northern Ireland and/or the Labour Relations Agency, where issues arise in proceedings about the exercise of their powers and duties – which would suggest something similar to the powers exercised by the High Court/Court of Appeal under the Rules of the Supreme Court (Northern Ireland) 1980 to allow a non-party who can establish a sufficient interest, to intervene in particular proceedings.  (See Harvey on Industrial Relations and Employment Law, Paragraph 557 and IDS Handbook Employment Tribunal Practice and Procedure, page 244.)  

I am satisfied Rule 10(2)(r) could be used in such situations; but equally I am not satisfied the use of the rules is confined to such situations/circumstances.  Rule 10(2)(r) of the 2005 Rules has been introduced under the 2005 Rules of Procedure together with Rule 10(2)(k).  It is also in wider terms to the previous rule under the 1976 Rules of Procedure and following the Sandhu decision and subsequent revising of the rules, is intended, in my judgment, to be applied in a situation, not already covered by Rule 10(2)(k).  In my opinion, if a party is not a party against whom a remedy is likely to be ordered, a mere interest without more in the proceedings is unlikely, save in particular circumstances, to be sufficient grounds to make a Joinder Order under Rule 10(2)(r).  In particular, in my judgement, it should not be used as a basis to avoid the narrower terms of Rule 10(2)(k) of the 2005 Rules of Procedure; not least in relation to the difference of emphasis in relation to the exercise of the tribunal’s discretion.

3.5	In considering these preliminary issues, it is clear that the tribunal has a discretion whether or not to grant the said applications, having regard to the terms of Rule 10(2)(k) and (r) of the 2005 Rules of Procedure, referred to above.  In my judgment it was also necessary to have particular regard to the fact that, in determining these issues, the tribunal is not, at this stage, determining the issues which will require to be determined by the tribunal at a substantive hearing on the merits.  Whether or not the claimants will ultimately be successful in their claims against any party joined in the proceedings is not for the tribunal to determine in the course of determining these preliminary issues.  If the claimants are ultimately unsuccessful against any party joined to these proceedings, there may be consequences for the claimants, in light of any application that may be made to the tribunal which conducted the substantive hearing, arising out of such failure.

4.1	Each of the claimants, as set out above, has made a claim for a declaration of entitlement to membership of their employer’s occupational pension scheme, from which scheme they each have claimed they were unlawfully excluded by the      first-named respondent, by reason of their part-time status.  These claims were made pursuant to Section 1(1) of the Equal Pay Act (Northern Ireland)  and further in the alternative Article 141 of the Treaty of Rome.  It was not in dispute, at the hearing of this pre-hearing review, that the period of exclusion relied upon by each claimant ended in or about 1993; and that any claim by each claimant related to a period of exclusion from the date when each claimant commenced employment with the first-named respondent until in or about 1993.  The said claims were initially made against the claimant’s employer, namely the first-named respondent.  The trustees of the employer’s occupational pension scheme (‘ABF’) were not made parties to the claims when they were presented to the tribunal.

4.2	The second-named respondent (then referred to as the Trustees and managers of the ABF Pension Scheme) were joined to these proceedings as a party, pursuant to an Order made by the tribunal on 30 May 2006 in the circumstances set out in Paragraph 2. of this decision.  The said Joinder Order, having been made in the absence of the second-named respondent, was made by the tribunal, without prejudice to any application by the newly joined party to set aside the said joinder.  There was no dispute that pursuant to the 2005 Rules of Procedure, the       second-named respondent was entitled to make this application to set aside the said Joinder Order.

4.3	Any remedy which a tribunal can provide, on foot of such a claim brought under the Equal Pay Act (Northern Ireland) 1970 and/or Article 141 of the Treaty of Rome, is limited to granting a declaration that an employee was entitled to be a member of the employer’s pension scheme between the relevant specified dates and require the employer to obtain figures, from the pension fund trustees, for the contributions which both parties must make to the scheme.  If there is a dispute about these figures by any party, then the matter has to be referred to the Pensions Ombudsman.  Indeed, the Pensions Ombudsman will not carry out such an investigation, in the absence of such a declaration.  Although, the declaration relates to the employee’s said entitlement during the period of employment with the employer, it is apparent the trustees will be ultimately involved in relation to the issue of contributions to be made and also the actual monies payable to the employee under the pension scheme, in light of any such declaration made.  The foregoing has been established in the Preston litigation (Preston No 1 1996) IRLR 484, Preston No 2 (2001) IRLR 237 and Question No 3 (2004) IRLR 979/Powerhouse Retail Ltd  v  Burroughs (2006) IRLR 381 (and see further Information Bulletin No 9, which was produced by the Employer Tribunals Working Group in Great Britain in relation to the conduct of such part-time workers and the issues arising in such claims following the Preston litigation referred to above).  

	I am satisfied, following the Preston litigation, a claimant’s claim for a declaration in relation to exclusion from an employer’s occupational pension scheme by reason of part-time status can be brought against the employer of an employee, and the said declaration is made in relation to the employee’s entitlement to membership of the employer’s occupational scheme for a specified period.  That remedy can clearly be obtained on foot of the claim made against the employer.  The claimants, in this particular case, have made such a claim against their employer, namely the       first-named respondent, and who was represented, at this hearing by Ms McGrenera QC.  The first-named respondent, I was informed, is dormant/        no longer trading – but is still on the relevant Companies Register for the purposes of company law in Great Britain and/or Northern Ireland.

4.4	For the purposes of considering the application of the second-named respondent for the Joinder Order to be set aside, it was necessary to consider whether the claimants were entitled to bring a claim, not only against the relevant employer, the first-named respondent (as each had done); but also the trustees of the employer’s occupational pension scheme for the relevant period of entitlement.

	Mr Potter, on behalf of the claimants, contended that a claimant was entitled to do so and relied on the decision of the European Court of Justice in the case of Coloroll Pension Trustees Ltd  v  Russell and Others (1995) ICR 179.  This case arose out of the collapse of the Coloroll Group.  The Coloroll decision decided, inter alia, that the direct effect of Article 141 of the Treaty of Rome could be relied upon by the dependants of employees, as well as employees, and against not only the relevant employers but also the relevant occupational pension scheme trustees, who in the exercise of their powers, were bound to observe the principle of equal treatment.

4.5	Although, it has been my experience in determining such part-time pension cases in Northern Ireland, following the Preston litigation, such a claim would normally be made against the employer alone, I am not satisfied, in light of the Coloroll decision, that the claimants are not entitled to make a claim, in the alternative, against the trustees of the first-named respondent’s occupational pension scheme; who for the relevant period for any entitlement in relation to the claimants’ claims were the second-named respondents.  

	In light of the Coloroll decision, the second-named respondent may be liable and the claimants having sought to continue their claims against not only their employer but also, in the alternative, the trustees of the relevant pension scheme, I was satisfied, subject to what I state below, the second-named respondent should continue to be a respondent in these proceedings, pursuant to Rule 10(2)(k) of the 2005 Rules of Procedure.  At this stage, it is not for me to determine whether in fact the second-named respondent, either alone or in the alternative with the first-named respondent will be found liable at the substantive hearing on the merits.  I therefore initially concluded, subject to what I state below, that I was not prepared, in the exercise of my discretion, to set aside the said Joinder Order, joining the second-named respondent to these proceedings, having regard to the terms of Rule 10(2)(k) of the 2005 Rules of Procedure.  

4.6	In the above circumstances, it was not necessary for me to consider further whether or not the said Order should be set aside, having regard to the terms of Rule 10(2)(r) of the 2005 Rules of Procedure.  However, as I have indicated above, it is apparent that if a relevant declaration is made against the employer, the relevant trustees will be required to give details of relevant contributions to the employer but also to be ultimately involved in the actual monies payable to any employee under the pension scheme and how they are calculated, in light of any such declarations made.

	In these circumstances, given the terms of Rule 10(2)(r) of the 2005 Rules of Procedure (see further Paragraph 3. of this decision), I am satisfied that the claimants can show that the second-named respondent, if it is the relevant trustee, has an interest in the outcome of the proceedings and therefore may be properly joined to these proceedings.  I am also satisfied that such interest is more than mere interest in the outcome of the proceedings, given involvement in the matters set out above.  Thus, if it had been necessary to do so, I would have been satisfied, subject to what I state below, that the said Joinder Order joining the second-named respondent, having regard to the terms of Rule 10(2)(r) of the 2005 Rules of Procedure, should not be set aside.

4.7	Before coming to a final conclusion in relation to whether or not the said Joinder Order in relation to the second-named respondent should be set aside, it was necessary for me to also consider the events that took place in or about 1997, after these proceedings had been brought by the claimants, and, which were specifically addressed, insofar as relevant and material, in the response of the second-named respondent to the claimants’ claims – following the making of the said Joinder Order; and which were relied upon by Mr O’Hara QC, on behalf of the second-named respondent, in the course of his submissions.

		“2.	Sale of Stewarts Supermarkets Limited to Tesco Stores Limited

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 issue share capital of Stewarts Supermarkets Limited was sold to Tesco Stores Limited.  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 the Tesco Pension Trustees Limited 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 arrangements.

3.3	In the same letter, it explained to the claimant if she chose to transfer her ABF pension to the Tesco Scheme, she would be credited with an enhanced transfer value.  

3.4	(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 Limited …  I understand that, following the transfer, that I nor my spouse or dependants will have any further entitlement under the ABF Scheme.

… .”

The said transfer document included the option set out at Paragraph 3.4 but also an 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.”

All of the claimants, the subject-matter of these proceedings, transferred the value of their benefits under the ABF Scheme to the Tesco Pension Schemes.  There was no dispute that the Notice Party is the relevant trustee for these schemes.

4.8	During the course of this hearing, many of the submissions made by the parties’ representatives and the representative of the Notice Party related to the terms of the said sale and purchase agreement and its proper interpretation and construction.

It was pursuant to the terms contained in the sale and purchase agreement that the events, which are referred to above in relation to the transfer of the value of rights to benefits under the ABF Pension Scheme to the Tesco Pension Scheme, took place.  Further, there was much dispute during the hearing of this pre-hearing review not only about the proper construction and interpretations of the terms of the said agreement; but also in relation to said transfer, and whether the second-named respondent and/or the Notice Party, on foot of such transfer, had any liability for the claimants’ claims.

As I have stated previously, it was not for me at this pre-hearing review, in advance of any substantive hearing, and in the absence of any agreement between the parties, to resolve and determine those issues arising out of the proper interpretation and construction of the terms of the said agreement or the issues arising in relation to the said transfer by each of the claimants.  

4.9	The second-named respondent, in its response to the claims of each claimant, also stated:-

“7.	Transfer of pensionable service

7.1	In the event that the industrial tribunal makes a declaration that the claimant is entitled to membership of the pension scheme between certain dates, the second-named respondent will say that the relevant Pension Scheme to which the entitlement relates must be the Tesco PLC Money Purchase Pension Scheme.

7.2	As set out at Paragraph 3. above, the claimant transferred her pensionable service to Tesco PLC Money Purchase Pension Scheme and acknowledged that she had no further entitlement under the ABF Scheme by stating:-

“I understand that following the transfer, neither I nor my spouse or dependants will have any further entitlement under the ABF Scheme.”

The claimant made this statement in full knowledge that she had an industrial tribunal claim outstanding.

7.3	Furthermore, it was not possible in any event to effect a part-transfer of past service entitlement.  Therefore the claimant’s transfer to the Tesco PLC Money Purchase Pension Scheme effected the transfer of her entire pensionable entitlement under the ABF Scheme, and any claim must be a matter for the Tesco Scheme.

7.4	The second-named respondent will, therefore, contend it shall not be open to the industrial tribunal to make a declaration that the claimant shall be admitted to the ABF Scheme between certain dates as all of her pension rights are transferred in their entirety to the Tesco PLC Money Purchase Pension Scheme.”

Ms McGrenera QC, on behalf of the Notice Party, emphasised she did not accept these contentions made by the second-named respondent.  These issues, and, in particular, the effect upon the claimants’ claims of the said transfer and the consequences, if any, for the second-named respondent and/or the Notice Party, are not a matter for me at this pre-hearing review, in the absence of any agreement between the parties and Notice Party in relation to their determination; and are issues which are required to be determined at a substantive hearing on the merits.

4.10	If the second-named respondent is correct in its contention, then this could have the consequence, in light of the said transfers, subsequent to 1997, that the             second-named respondent would no longer have liability for the claimants’ claims.  If this issue had not been in dispute between the parties, it would have been a matter to be considered by me, in the exercise of my discretion, in relation to whether the Joinder Order should be set aside.  However, these matters are not agreed and remain in dispute, and depend on a determination, at a substantive hearing on the merits, of the proper interpretation of the terms of the Sale and Purchase Agreement and the consequences of the said transfer, as set out above; and I therefore do not consider that it is possible for me, in advance of such a substantive hearing on the merits, to come to the conclusion, as contended for by the second-named respondent in its response.  The second-named respondent may be correct.  But that is not for me to determine at this stage, and are not therefore matters which require me, in the exercise of my discretion, to alter my initial conclusion that the Joinder Order, joining the second-named respondent should not be set aside (see Paragraph 4.5 and 4.6).  

5.1	Given that the second-named respondent contends, as set out in Paragraph 7. of the second-named respondent’s response, it is not liable but the Notice Party is liable, and the Notice Party does not accept it is so liable, it is not surprising the claimants now seek to join, in the alternative, the Notice Party, as the trustees of the said Tesco Scheme, to be a respondent to these proceedings.  If the            second-named respondent’s contentions, at the substantive hearing, are found to be correct and the Notice Party is the relevant trustee, for the purposes of these proceedings, and not the second-named respondent, the claimants pursuant to the Coloroll decision, may therefore be able to establish liability against the Notice Party.  Any resolution of whether the second-named respondent and/or the Notice Party, or either of them, are liable can only be resolved following a substantive hearing on the merits.  

Therefore, having been satisfied that at this time, pending any substantive hearing, the Notice Party may be liable, I am satisfied decided that, pursuant to Rule 10(2)(k) of the 2005 Rules of Procedure, the said Notice Party, in the exercise of my discretion, should be ordered to be joined to these proceedings.

5.2	As in relation to the second-named respondent, it is not necessary for me in the circumstances to consider further, in relation to the Notice Party, the provisions of Rule 10(2)(r) of the 2005 Rules of Procedure.  For similar reasons to those set out above in relation to the second-named respondent (see further Paragraph 4.6) I was satisfied the claimants could establish the Notice Party , if it was the relevant trustee, had a sufficient interest in the outcome; and I would have been prepared, if it had been necessary to do so, to join the Notice Party as a respondent to the proceedings pursuant to Rule 10(2)(r) of the 2005 Rules of Procedure.

6.	I therefore decided that:-

(1)	The Order, dated 30 May 2006, joining the second-named respondent to these proceedings should not be set aside.

(2)	The Notice Party (Tesco Pension Trustees Limited) is ordered to be joined as a respondent to the proceedings.

Chairman:

Date and place of hearing:	19 December 2007, Belfast

Date decision recorded in register and issued to parties: