Appeal No. UKEAT/0521/09/DM
UKEAT/0522/09/DM
UKEAT/0523/09/DM
UKEAT/0524/09/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 June 2010
	   Judgment handed down on 9 July 2010

Before
THE HONOURABLE MR JUSTICE SILBER
(SITTING ALONE)

GEOFFREY WORRALL & OTHERS	APPELLANTS

(1) WILMOTT DIXON PARTNERSHIP LTD 
      (PREVIOUSLY KNOWN AS INSPACE PARTNERSHIP MAINTENANCE 
      AND STOCK REINVESTMENTS LTD)

(2) MR J SAMBROOK	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellants	ANDREW HOGARTH QC 
Instructed by:
Messrs O H Parsons & Partners Solicitors
212-224 Shaftesbury Avenue London 
WC2H 8PR	
For the First Respondent

For the Second Respondent	PAUL GOULDING QC 
Instructed by: 
Messrs Lewis Silkin LLP Solicitors
King Charles House 
Park End Street
Oxford 
OX1 1JD

No appearance or representation by or on behalf of the Second Respondent	

SUMMARY
CONTRACT OF EMPLOYMENT – Incorporation into contract
TRANSFER OF UNDERTAKINGS – Pensions and other terms

In this test case, the Claimant started his employment with Birmingham City Council on 29 July 1971. In 1993, the Council and its recognised trade unions entered into a collective agreement relating to redeployment and redundancy.  By clause 3.2 it was provided that in respect of employees who were made voluntarily redundant the Council “will in exercising its discretion in accordance with the Superannuation Regulations award at least 5 added years”.  This provision was contained in the Council’s Personnel Handbook. 

By regulation 8(1) of the Local Government (Early Termination of Employment) (Discretionary Compensation) (England and Wales) Regulations 2000, it was provided that “an employing authority may award a credited period to an eligible person”.

On 2 April 2001, the Claimant’s employment was transferred under TUPE to Serviceteam.  The Local Government (Early Termination of Employment) (Discretionary Compensation) (England and Wales) Regulations 2006 repealed the 2000 regulations  The power to award “credited period” was abolished and it was replaced by a power to award a lump sum payment up to a maximum of 104 weeks’ pay.

In about December 2006, the Claimant’s employment was transferred under TUPE from Serviceteam to Morrison Plc.  On 1 April 2008 the employment of the Claimant was transferred under TUPE from Morrison Plc to the Respondents.  

The Claimant applied for voluntary redundancy and his offer was accepted but the Respondents stated they did not have any discretion to award “added years” under the applicable super-annuation regulations as the statutory discretion to award it under clause 3.2 had been removed by the 2006 regulations.

The Employment Tribunal held that:-
(a)	the clause 3.2 term was incorporated by  reference into the Claimant’s contract of employment;

(b)	the phrase “added years” in clause 3.2 was understood by the unions, the employers, the employees, the pension fund and the Government to be the same as the statutory concept of “credited period” referred to in the 2000 regulations;

(c)	the ability to award a credited period in the case of a voluntary redundancy was removed by the 2006 regulations; and

(d)	the Respondents were correct in that they had no obligation or a discretion to grant the “added years” referred to in clause 3.2.

Held: The appeal of the claim was dismissed because:-

(a)	each of the conclusions of the Employment Tribunal was correct save that clause 3.2 was not incorporated into the Claimant’s contract of employment;

(b)	the decision of the Court of Appeal in Parkwood Leisure Limited v Alemo Heron [2010] IRLR 298 and the decision of the European Court of Justice in Werhof v Freeway Tram System GmbH & Co [2006] IRLR 400 stating that the rights of the parties under collective agreements had to be looked at the time of the transfer did not mean that subsequent statutory changes could be ignored.  Indeed the 2006 regulations had to be taken into account and they showed that any rights under clause 3.2 were abolished by the 2006 regulations; and

(c)	the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2007 do not resurrect any rights under clause 3.2 because they deal with a different regime from that covered by clause 3.2 which has been abolished by the 2006 regulations.

THE HONOURABLE MR JUSTICE SILBER
I	Introduction
1.	By a decision dated 31 July 2009, Employment Judge Monk sitting in the Employment Tribunal in Birmingham dismissed a claim that Inspace Partnerships Maintenance and Stock Reinvestments Limited which is now called Wilmott Dixon Partnerships Limited (“the Respondents”) had acted in breach of the contract of employment of Mr Geoffrey Worrall (“the Claimant”) following his redundancy on 30 April 2008 by failing to give him credit for an additional five years service.  Mr J Sambrook was the Second Respondent to this appeal but by an Order of the Employment Appeal Tribunal dated 8 February 2010, he was debarred from taking any further part in the appeal.

2.	The claim of the Claimant had been selected as a test case as he is one of forty-six claimants bringing identical claims, which relate to the enforceability of a provision in a collective agreement, which provided that an employee in the Claimant’s position electing to take voluntary redundancy would be entitled to an increase of five years service in calculating his pension.

3.	The relevant term was originally contained in a collective agreement between, on the one hand Birmingham City Council (“the Council”) by whom the Claimant was employed prior to a series of transfers pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 1981 (“TUPE”) culminating in his employment by the Respondents and, on the other hand, the Council’s recognised trade union.  The relevant term (“the clause 3.2 term”) contained in the collective agreement entered into in June 1996 provided so far as is material that:-

“3.2 In respect of employees who are made voluntarily redundant, the City Council will, in exercising its discretion in accordance with the Superannuation Regulations award at least five added years”.

4.	In a careful and impressive judgment, Employment Judge Monk found (with paragraphs in square brackets being the paragraph numbers in her reasons) that:-
(a)	The clause 3.2 term was incorporated by reference into the Claimant’s contract of employment [30];
(b)	the phrase “added years” in clause 3.2 was understood by the unions, the employers, the employees, the Pension Fund and the Government to be the same as the statutory concept of “credited period” which is referred to in the Local Government (Early Termination of Employment) (Discretionary Compensation) (England and Wales) Regulations 2000 (“the 2000 Regulations”) [31];
(c)	the ability to award a credited period in a case of voluntary redundancy was removed as (i) regulations 11(1) and (2) of the The Local Government (Early Termination of Employment) (Discretionary Compensation) (England and Wales) Regulations 2006 (“the 2006 Regulations”) repealed the 2000 regulations and (ii) regulation 6(1) of those regulations imposed a limit of 104 weeks pay [33]; and
(d)	with effect from 1 April 2007 (which was when the repeal of the 2000 regulations took effect) employers no longer had a discretion pursuant to clause 3.2 to award added years to employees who are members of the Local Government Pension Scheme and who took voluntary redundancy [33].

5.	The Respondents appeal against decision (a).  The case for the Claimant is that he is entitled to benefit in accordance with clause 3.2 and so he appeals against decisions (b) to (d) but the Respondents disagree.

6.	Mr Alan Pountney, another Claimant, adopts Mr Worrall’s grounds of appeal and he puts forward additional grounds on which I will comment later.

II	Chronology
7.	I will set out the facts relating to the claim of Mr Worrall in respect of material matters, as they are typical of the other cases.  He was born on 2 December 1947 and commenced his employment with the Council on 1 July 1973 as a driver.  On 22 August 1989, he was provided with a statement of particulars of Terms of Employment which included the provision that his pension was set out in the authority’s Superannuation Scheme.

8.	In June 1996, the Council and its recognised trade unions entered into a collective agreement relating to redeployment and redundancy.  The Council’s Personnel Handbook, issued in June 1996, contained this collective agreement and clause 3.2 of it contained the term about added years which has been set out in paragraph 3 above.

9.	By regulation 8(1) of the 2000 Regulations, it was provided that “an employing authority may award a credited period to an eligible person”.  I add at this stage that one of the issues in this case is whether the phrase “credited period” is the same as the “added years” referred to in clause 3.2 and it is a matter to which I will return in paragraphs 30 to 32 below.

10.	On 2 April 2001, the Claimant’s employment was transferred under TUPE to Serviceteam and as part of this transfer, this new employer of the Claimants was given “Admitted Body Status” to the Local Government Pension Scheme.

11.	Eligibility for a “credited period” in the 2000 Regulations was to some extent dependent on age because to be eligible a worker had to be, among other things, at least 50 years of age but less than 65 years of age.  This apparently presented difficulties with the coming into effect in October 2006 of new laws prohibiting age discrimination, as was recognised by the Government in its 2004 Consultation Paper on the future of the Local Government Pension Scheme.

12.	As a result of the consultation, the power to award “a credited period” was abolished and it was replaced by a power to award a lump sum payment to a person ceasing to hold employment with an employing authority up to a maximum of 104 weeks’ pay.  Regulation 11(1) of the 2006 regulations repealed the 2000 regulations.  The 2006 regulations came into force on 29 November 2006 with transitional provisions enabling the award of a credited period in certain cases until 31 March 2007: regulation 11(2).  The case for the Respondents, which was accepted by the Employment Judge, is that the right to added years under clause 3.2 was thereby abolished with effect from 1 April 2007.

13.	In about December 2006, the Claimant’s employment together with that of others was transferred under TUPE from Serviceteam to Morrision plc and a number of employees were made redundant.  On 1 April 2008, the employment of the Claimant together with that of others was transferred under TUPE from Morrison Plc to the present Respondents.  As part of the transfer arrangements, the Respondents, the Council and the West Midlands Pension Scheme entered into a transfer admission agreement by which the Respondents were admitted as a scheme employer for the purpose of the Local Government Pension Scheme.

14.	The Claimant applied for voluntary redundancy and his offer was accepted.  He lodged a grievance against the Respondents’ failure to make an award of added years in his case.  After the final stage of the grievance proceedings, the Respondents stated that they did not have any discretion to award added years under the applicable superannuation regulations as the statutory discretion to award added years under clause 3.2 had been removed by the 2006 Regulations.

III	The Grounds of Appeal
15.	Mr Andrew Hogarth QC, counsel for the Claimants contends that:-

(a)	there are two parallel schemes for making enhanced payments where local government employees are made redundant.  The first one was under regulation 52 of the Local Government Pension Regulations 1997 (“The 1997 Regulations”) which were in force at the time of the first transfer to Serviceteam in April 2001 and those provisions were repeated in the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulation 2007.  So the Claimant is entitled to benefit under those regulations as his rights under clause 3.2 are not repealed by the 2006 Regulations but still survive; and alternatively that,

(b)	as a result of the decision of the Court of Appeal in Parkwood Leisure v Alemo-Herron [2010] IRLR 298, the critical date for establishing the nature of the Claimant’s rights was 2 April 2001 (which was the date of the first transfer to Serviceteam) and so any subsequent enactments, such as those set out in the 2006 Regulations must be ignored.

16.	Mr Paul Goulding QC, counsel for the Respondents, contends that the clause 3.2 term was not incorporated into the Claimant’s contract of employment but that the Employment Judge was correct in holding that the ability to award a credited period in the case of voluntary redundancy such as that set out in clause 3.2 was removed by the 2006 regulations.  He submits that nothing in any of the later regulations, such as the 2007 Regulations has any effect on this conclusion.

17.	The issues that have to be considered are therefore :-

(a)	whether clause 3.2 was incorporated in the Claimant’s contract of employment (“The Incorporation Issue”)(see paragraphs [18] to [24] below);

(b)	if clause 3.2 was incorporated in the Claimant’s contract of employment, whether  the correct date for determining the Claimant’s rights under clause 3.2 was 2 April 2001 (which was the date of the first transfer from the Council to Serviceteam) so that there could be no changes to his rights as a result of statutory intervention (“The Critical Date Issue”) (see paragraphs [25] to [29] below);

(c)	if clause 3.2 was incorporated in the Claimant’s contract of employment, whether statutory changes after 2 April 2002 can alter the rights of the Claimant, what was the effect of the 2006 Regulations? (“The 2006 Regulations Issue”) (see paragraphs [30] to [33] below);

(d)	if clause 3.2 was incorporated into the Claimant’s contract of employment, can a claim be brought for an enhanced pension by relying on the 2007 regulations? (“The 2007 Regulation Issue”) (see paragraphs [34] to [38] below); and

(e)	Mr Pountney’s additional grounds (see paragraphs 39 to 43 below).

IV	The Incorporation Issue
18.	As I have explained, the Employment Judge found that clause 3.2 was incorporated “by reference” into the Claimant’s contract of employment.  She reached that decision on the basis first that it was specifically referred to in the Personnel Handbook, second that it was specifically referred to in a letter from the Director of Housing to all employees who transferred in 2001 to Serviceteam and third that:-

“…the respondents when dealing with the claimant’s grievance and the collective agreement do not appear to resile from the position that there was an agreement that was enforceable…” [30]

19.	The Employment Judge also said that the Respondents conceded this point but it is now accepted that the matter was not conceded and that the Respondents are entitled on this appeal to challenge the finding that clause 3.2 was incorporated.  The case for the Claimant is that his contract of employment incorporates by reference the terms contained in all collective agreements made between the Council and the recognised trade unions.

20.	Mr Goulding submits that each of the three points relied on by the Employment Judge, whether considered individually or cumulatively, do not support or justify the conclusion  that clause 3.2 was incorporated into the Claimant’s contract of employment.  As to the Personnel Handbook, the Claimant did not give evidence that he had received a copy of it [6] but the Employment Judge explained that the Handbook was a contractual document binding the Claimant because “there is no real doubt that the Personnel Handbook was a document that was available for, or given to, all employees of Birmingham City Council”.  In my view and bearing in mind that there was no evidence that the Claimant received the Personnel Handbook, it cannot be right that a party is bound by a contractual document which he has not received merely because it was a document available to him. The fact that a document was available to the Claimant does not show that he had notice of its terms or that he had agreed to them.

21.	The second matter relied on by the Employment Judge as showing that clause 3.2 was incorporated into the Claimant’s contract of employment is that “the policy is specifically referred to in the letter from the Director of Housing to all employees who transferred in 2001 to Serviceteam and I am satisfied that this is an indication both of its contractual nature and that it did in fact transfer to Serviceteam” [29].  The relevant letter is dated 29 March 2001 and it states that further to a mass meeting, the Director of Housing  of the Council was then “… able to confirm the negotiated position described by the Council, Trade Unions and the new employers at Monday’s meetings are included within the formal contracts with Serviceteam…your new employers”.

22.	In my view, this comment and indeed the entire letter only relates to first negotiations and agreements reached between Serviceteam on one hand and the Council Trade Unions on the other and second the rights of individuals. The letter does list over a hundred different national pay agreements and policies and agreements and one of those is described as “Redeployment & Redundancy”, without giving any details whatsoever of its contents of such policies or agreements.  I agree with Mr Goulding that it is impossible to conclude that this letter shows either that the Claimant was aware of clause 3.2 or more importantly that he agreed to it. After all, the mere reference to a policy in a letter from the Council to transferring employees to the fact that the policy will transfer to the new employer does not give that policy contractual effect and certainly does not satisfy the test of incorporation by reference. Similarly I cannot accept that this letter shows its “contractual nature” in relation to the Claimant.

23.	The third matter relied on by the Employment Judge to show that clause 3.2 was incorporated was that “the respondents when dealing with the claimant’s grievance and the collective agreements do not appear to resile from the position that there was an agreement which was enforceable” [30].  In my view, this does not go close to showing a contractual agreement.  After all, the Respondents were not parties to the original agreement and they did not know what the Claimant had agreed to in relation to clause 3.2.  Mere absence of protest from the Respondents in relation to the Claimant’s assertion that he was entitled to benefits under clause 3.2 does not in itself or with any of the other points show that clause 3.2 was incorporated in the Claimant’s contract of employment. This seems to be attempting to establish some of the requirements of some novel form of estoppel which falls well short of satisfying the requirements that the parties agreed to be bound by clause 3.2. Thus I am unable to accept that clause 3.2 was incorporated into the Claimant’s contract of employment.

24.	Mr Hogarth also submits that if, which is the case, I do not agree with the Employment Judge’s conclusion that clause 3.2 was incorporated into the Claimant’s contract of employment, I should not determine this issue but that instead I should direct this matter should be remitted for further consideration by the Employment Tribunal.  I am unable to accept this submission because all the relevant material is in front of me and Mr Hogarth was unable to refer to any other factors to justify incorporating clause 3.2.  He did not adduce any further submissions which would have enabled an Employment Tribunal to conclude that the Claimant agreed to clause 3. 2 being incorporated in his contract of employment.  So it is quite clear that there is no agreement that clause 3.2 should be incorporated into the Claimant’s contract of employment and that means this appeal has to be dismissed.  Indeed I suspect that the Employment Judge would have come to the same conclusion as I have reached if she had appreciated that the Respondents did not accept that clause 3.2 was incorporated into the Claimant’s contract of employment.  As I have heard submissions on the other issues, I will deal with them but more briefly than I would have if they had been critical matters.

V	The Critical Date Issue
25.	Mr Hogarth contends that as a result of the decision of the Court of Appeal in the Parkwood Leisure case (which was given after the Employment Judge had given her decision), the critical date for establishing the nature of the Claimant’s rights under clause 3.2 was 2 April 2001 as this was the date of the first transfer to Serviceteam and so any changes to clause 3.2 as a result of subsequent statutory intervention can be ignored.  Mr Goulding submits that the Claimant‘s case is based on a misunderstanding of what Parkwood actually decided.

26.	In the Parkwood case, the claimants were local government employees who in 2002 were transferred to a private sector company under TUPE 1981.  The private sector company was taken over by another private sector company which was Parkwood Leisure Limited with the claimants’ contracts of employment being transferred to it.  The claimants’ contracts of employment prior to transfer incorporated the terms of collective agreements and the claimants were awarded pay increases in line with the collective agreements.  A dispute arose as to whether Parkwood was bound to increase pay for the period from April 2006 to March 2008.  The Employment Tribunal held that the claimants were not entitled to be remunerated in accordance with the collective pay agreement in the period from April 2006 to 2008.

27.	This decision was reversed by this Appeal Tribunal but the Court of Appeal allowed the employer’s appeal. It relied on the judgment of the European Court of Justice (“ECJ”) in Werhof v Freeway Traffic Systems GmbH & Co [2006] IRLR 400 in which it was held that under the EC Business Transfers Directive 71/187 subsequently replaced by Directive 2001/23 (which, in so far as is material, is in the same terms), the transferee was not bound by collective agreements other than the ones in force at the time of the transfer as it considered that the Directive only protected the employees’ rights as at the time of transfer and  that it was not intended to protect “mere expectations to rights and, therefore, hypothetical advantages flowing from future changes to collective agreements”.  As was explained  by the ECJ in the Werhof case:-

“29…Thus the wording of the Directive does not indicate in any way that the Community legislature intended that the transferee be bound by the collective agreements other than the one in force at the time of transfer and consequently, that the terms and conditions be subsequently amended through the application of  a new collective agreement concluded after the transfer…”.

28.	In the Parkwood case, this finding was fatal to the case of the employees but that case is very different from the present case in which the critical factor was whether the right to the benefit under clause 3.2 ceased to be lawful as a result of clause 6 of the 2006 regulations for the reasons which I will explain in paragraphs 30 to 33 below.  Mr Hogarth submits that the terms of the employment contract are frozen as at the date of the transfer and if some provisions which were valid at the time of the first transfer later become unlawful, the court would still be obliged to enforce the contractual rights considered as at the date of the transfer and ignore the subsequent legislation.

29.	In my view, that cannot be right.  First, in my view the decision in the Parkwood case, following as it does the Werhof case, goes no further than preventing  parties from being bound by “future changes to collective agreements”, which are very different from statutory prohibitions on making payments.  Second, the reasoning in the Parkwood and the Werhof cases do not support a contrary conclusion.  Third, there is no reason of principle why an employer who is a transferee under TUPE is outside the scope of statutory provisions and immune from such provisions. Fourth, the mere fact that the Parkwood decision is based on an EU Directive is not an acceptable excuse for ignoring statutory provisions as suggested by Mr. Hogarth.  So I am unable to accept the Claimant’s case on this issue.

VI	The 2006 Regulation Issue
30.	The Employment Judge held, as I have explained, that the 2000 Regulations dealt with and preserved the rights in clause 3.2 while describing that provision as “a credited period”.  Regulation 8 (1) of the 2000 Regulations states that “an employing authority may award a credited period to an eligible person”.  Regulation 8 (2) states that the credited period must not exceed whichever is the shorter of a number of different periods including 10 years.

31.	The Employment Judge found “it seems to me that the overwhelming evidence points to the parties at all stages having understood the term ‘added years’ [which is set out in clause 3.2] to mean “ credited period’ in accordance with the 2000… regulations” [31]. Mr Hogarth did not seriously seek to challenge this finding.  Indeed where a word has customary meaning in a particular field, it is settled law that evidence is admissible to show the parties intended to give the word that meaning and upon proof of such intention the word shall be construed accordingly (see The Interpretation of Contracts by Sir Kim Lewison (2007) paragraph 5.09).

32.	There was overwhelming evidence that the term “added years” meant “a credited period” and no evidence was adduced to the contrary.  Such supportive evidence came first from  Mr Tyler, who is the Local Government Pensions Manager for the Council which was the Claimant’s original employer, and importantly the Council was a party to the collective agreement where the term originated; second from documentary evidence which emanated from the Council such as its “Policy Statement on the Local Government Pension Scheme”; third from the evidence of the West Midlands Pension Fund which operated the Local Government Pension Scheme for the Claimant; fourth from the evidence of the Government as stated in the 2004 consultation paper; and fifth from the Explanatory Memorandum to the 2006 regulations as well as the evidence of the unions in the form of UNISON’s newsletter.

33.	Thus, I agree with the Employment Judge that the right of the Claimant under clause 3.2 was terminated by the 2006 Regulations.

VII	The 2007 Regulations Issue
34.	Mr Hogarth contends that even if the 2006 regulation repealed the 2000 regulation, that does not preclude the Claimant from invoking clause 3.2 because there have always been two parallel schemes for making enhanced payments when local government employees are made redundant.  One of those dealt with the position of employees who are made redundant when over the age of 50 and there are regulations providing the enhancement of the length of pensionable service.

35.	So under regulation 52 of the Local Government Pension Regulations 1997 (“the 1997 Regulations), it was provided that an employing authority could increase the total membership of members leaving employment at or after the age of 50.  The 1997 Regulations were in force at the time of the first transfer on 2 April 2001 and they were re-enacted in regulation 12 of the 2007 Regulations.  It is said by Mr Hogarth that the Claimant can recover under these regulations which have to be distinguished from the different regime in the 2000 regulations, which were not restricted to employees over 50 and which, as I have explained, were then the subject of the 2006 Regulations.  Thus it is said whatever happened to the 2006 Regulations does not preclude the Claimant from bringing his claim.

36.	I am unable to accept these submissions because they fail to appreciate the difference between the two schemes because in the words of the Employment Judge “all parties concerned understood there was a difference between added years and augmentation” [31] when “augmentation” was intended to apply to the scheme now in the 2007 regulations and previously in the 1997 regulations.

37.	The difference between the regimes was explained by the Employment Judge who referred to and accepted the evidence of Mr Tyler who, as I have explained, has been the Local Government Pensions Manager for the Council since 1998 and who said that added years and augmentation were very different in nature because augmentation could be granted at any time and was commonly used for recruitment or retention purposes whereas “added years” were used in relation to the ending of the employment relationship in situations where efficiency savings were sought under a voluntary redundancy programme.  This was a conclusion which the Employment Judge was entitled to reach and there was no error of law in her so deciding it.

38.	In consequence, I conclude that the 1997 and 2007 Regulations deal with very different matters from those set out in clause 3.2 and thus the Claimants cannot derive any support from them.

VIII	Mr Pountney’s Further Grounds of Appeal
39.	Mr Pountney relies not only on the grounds of Mr Worrall to which I have already referred but he also contends in his grounds of appeal that:-

“The purpose of the Voluntary Redundancy Agreement was to attract volunteers for redundancy, and for those over 50 years of age, this was by way of awarding them an enhanced payment.  At the time of drawing up the agreement, the additional pension was paid by way of awarding added years.  Under the 2006 regulations, the ability to award added years or a credited period was repealed, however, an alternative discretion was provided in replacement for the ‘added years’ whereby the employer has the ability to award a one-off lump sum of up to 104 weeks, or 2 years’ pay instead”.

40.	I do not consider that the fact that an alternative discretion was introduced by the 2006 regulations in place of the added years/credited period changes the meaning of the term and the collective agreement.  So this point does not assist Mr Pountney and Mr Hogarth did not argue otherwise.

41.	The second complaint of Mr Pountney is the alleged failure by the Respondents to consult with its workforce regarding the changes brought about by the 2006 regulations.  This complaint was not raised or pursued in front of the Employment Judge and it cannot be raised for the first time on appeal.

42.	The final complaint of Mr Pountney is to refer to evidence which was not before the Tribunal which was that Mr Tyler was incorrect when he said that since the changes to the 2006 regulation, no added years have been awarded to any employee of the Council who has taken early retirement or voluntary redundancy.  Mr Pountney disagrees because the statements of account for the Council for 2007/2008 and 2008/2009 state that:-

“Discretionary benefits were granted during the year to employees in respect of early retirement. This generated costs reported… and £0.5 million” (costs due to early retirement)”.

43.	This matter was not raised in front of the Employment Tribunal and no evidence was adduced in relation to it. Thus this matter cannot be pursued on appeal but it is noteworthy that in the respondents’ grounds of resistance, it is pointed out that the sums identified in the statement of accounts represent the ongoing annual costs of all previous awards made over the years up to 31 March 2007 and include an element for annual inflation-proofing.  If that is correct, that answers Mr Pountney’s point.

IX	Conclusion
44.	For the reasons which I have sought to explain clause 3.2 was not incorporated in the Claimant’s contract of employment but even if it had been incorporated, it ceased to have effect when the 2006 regulations repealed the 2000 regulations.  Further there is nothing in the decision of the Court of Appeal in the Parkwood case or in the 2007 regulations which assist the Claimants.  For those reasons, this appeal has to be dismissed.