Case - G Andrews v. (1) King’s College Hospital NHS Foundation Trust (2) Secretary of State for Health

[2012] Eq LR 1032, Employment Appeal Tribunal - Christopher Edwards

Where a part-time worker's failure to join an employer's pension scheme after the lifting of the exclusion on part-timer workers was due to her not being aware of her eligibility to do so, that failure did not provide an evidential presumption that had the exclusion not been in place she would not, in any event, have joined.

The appellant part-time employee (X) appealed against an employment tribunal's rejection of her claims in respect of her entitlement under the pension scheme of the respondent employer (K).

In 1982 X had commenced working for K. At that time she was excluded from the scheme, which was compulsory for full-time employees. In 1988 she was still excluded, but the scheme became optional for full-time employees. In 1991 she became eligible to join when the scheme became optional for part-time employees as well. But she was unaware of her eligibility and did not join until 2006. After she retired, X brought claims relating to the periods 1982-1988, 1988-1991 and 1991-2006. In relation to the first period, K did not oppose her claim under the Equal Pay Act 1970 that she was entitled to the benefit of an equality clause which would have meant that, like a full-time employee, she was compulsorily made a member of the pension scheme. However, in relation to the second period, it contested her claim under the Act because the equality clause would then have only meant she had the option of joining the scheme and she had not proved, on the balance of probabilities, that she would have done so. It also contested her claim in relation to the third period that it had breached an implied term to inform her of her eligibility to join the scheme. The tribunal judge held that X's claim for the second period had no reasonable prospect of success and struck it out. He dismissed her claim for the third period as it had been brought out of time and she had not demonstrated that it had not been reasonably practicable to present it in time and that it had been presented within a reasonable time thereafter.

HELD: (1) X's appeal in respect of the second period succeeded. Given that she had not been aware during the third period that she had the option to join K's pension scheme, the employment judge should not have used her failure to join for 15 years as providing an evidential presumption that she would not have joined the scheme during the second period had the equality clause been applied to her (see paras 18, 22 of judgment). (2) K's head of pensions had misinformed X that she had six months after the termination of her employment in which to make a claim before the tribunal. However, her claim regarding the third period had not been under the 1970 Act, which provided for the six-month time limit, and the time limit was the normal one of three months. X had relied on the incorrect statement and had not been at fault in doing so. Accordingly, the employment judge erred in law or misunderstood or misapplied his findings of fact in concluding that it had been reasonably practicable for her to have made her claim within the three months as opposed to the six months. As regards the reasonableness of X's three-month delay after the three-month time limit, half of that period had been due to K's head of pensions forgetting to pass on information to her and the remaining six weeks, in which she sought legal advice, was not a significant period of delay against her genuine and reasonably held belief that she had six months within which to commence proceedings. Therefore, the only conclusion the employment judge could properly have reached was that, in those circumstances, the further period of delay was reasonable. He should have permitted the claim to proceed, notwithstanding the fact that it was nominally made out of time (paras 25, 30-31).

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