Appeal No.	 EAT/922/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 May 1999

Before
HIS HONOUR JUDGE PETER CLARK
MRS J M MATTHIAS
MRS M T PROSSER

MRS S BARI	APPELLANT

THE LONDON BOROUGH OF WALTHAM FOREST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A J BARI
(Husband)	
For the Respondents	MR N WEINIGER
(of Counsel)
Instructed by:
The Director of Legal Services
London Borough of Waltham Forest
PO Box 6937
Sycamore House
Town Hall Complex
Forest Road
Walthamstow
London
E17 4UL	

	JUDGE PETER CLARK:	

1.	On 18th July 1988 the appellant, Mrs Bari, commenced employment with the London Borough of Waltham Forest, the respondent, as a social work assistant. Prior to commencing her employment she signed a document on 7th July 1988 indicating that she did not wish to be considered for membership of the local government pension scheme [“the scheme”].

2.	A year or so into her employment she changed her mind about joining the scheme and by a memorandum dated 14th August 1989 she applied to join the scheme with retrospective effect dating back to the date employment commenced, 18th July 1988. She completed the relevant application form on 29th August 1989.

3.	On 18th September 1989 formal notification of her joining the scheme was given by respondent, back-dated to 1st April 1989.

4.	Her employment terminated on 30th June 1996. Thereafter she commenced these proceedings by an Originating Application presented to the Employment Tribunal on 27th September 1996. Her claims included unfair/wrongful dismissal, unlawful deductions, breach of contract and pension rights.

5.	The material complaint for our purposes is set out in box 11 at paragraph 5 of the form IT1 thus:

“5.	Breach of contract over Pension rights: reduced benefits on wrong pensionable service calculated in breach of wages Act 1986; - lack of information provided as to the implications of not joining the scheme at the commencement of service; refusal to backdate my membership to the commencement of my service; refusal to use the discretionary powers in the interest of justice by LBWF, adversely affecting my benefits; lack of information provided regarding the regulations (extracts) upon which my request for backdating my membership to the beginning of my service had been refused.”

6.	It is common ground that prior to the termination of her employment, on 20th June 1996, the appellant asked that her pensionable service run from 18th July 1988. On 10th July 1996 she was informed that her pensionable service could not be further backdated.

7.	On 24th October the respondent entered a Notice of Appearance denying all the claims.

8.	On 28th October she wrote to the respondent, giving further particulars of her pension claim.

9.	On 5th January 1998 a directions hearing took place. The Chairman put the directions then given into the form of a letter dated 13th January 1998. In particular, the appellant was to provide further and better particulars of her Originating Application, pursuant to a request dated 4th January, by 26th January, and for that purpose the respondent agreed to provide copies of certain regulations covering the scheme. Those documents were sent to the appellant under cover of a letter dated 6th January.

10.	On 30th January the respondent wrote the tribunal complaining that the appellant had not served further and better particulars and asked for her application to be struck out.

11.	On 6th February the appellant wrote to the respondent referring, so far as the request for further and better particulars of the pension claim was concerned, to her earlier letter dated 28th October 1996.

12.	On 16th February the Chairman made a formal order requiring the appellant to provide further and better particulars of her Originating Application by 2nd March, warning that failure to comply may result in the Originating Application being struck out in whole or in part.

13.	On 17th February the appellant applied to the tribunal for the order of 16th February to be revoked. That application was refused on 4th March.

14.	No response having been received from the appellant, the respondent wrote again to the tribunal on 6th March asking for a strike out order.

15.	Meanwhile the appellant had entered an appeal to this tribunal against certain of the orders made and some not made in the directions letter of 13th January. When that appeal came on for hearing before this tribunal on 11th March the appellant was permitted to add a ground of appeal challenging the order of 4th March refusing to revoke the order of 16th February. All grounds of appeal were dismissed on that day.

16.	Following this tribunal’s judgment, the respondent applied again to the Employment Tribunal by letter dated 13th March for a strike out order.

17.	On 14th March a Chairman directed that the case be listed for an interlocutory hearing at which consideration would be given to striking out the Originating Application for failure to comply with the tribunal’s order of 16th February.

18.	Prior to that hearing, which then took place before the Regional Chairman, Mrs TJ Mason, on 8th April 1998, the appellant wrote to the respondent on 17th March purporting to give the further particulars ordered on 16th February.

19.	At the hearing on 8th April Mrs Mason ordered that the pension claim be struck out for non-compliance with the order of 16th February, having taken into account the appellant’s letter of 17th March. It is against that decision, promulgated on 9th April, that the present appeal has been brought, and permitted to proceed to this full appeal hearing by a division of this tribunal sitting on 2nd December 1998.

20.	For completeness we should add that the remainder of the appellant’s complaints were dismissed, following a full merits hearing, by a decision of an Employment Tribunal sitting at Stratford (Chairman: Mr B C Buckley) in a decision dated 5th May 1998. An appeal against that substantive decision was dismissed by this tribunal on 2nd December 1998.

The Appeal

21.	It is important to record, as Mr Weiniger accepts, that the sole basis on which the appellant’s claim under Box 11, paragraph 5 of her Originating Application was struck out by Mrs Mason was that the appellant had failed to comply with the order for further and better particulars made on 16th February 1998, that is, under rule 4(7) of the Employment Tribunal Rules of Procedure. The application was not put on the basis that the breach of contract claim was frivolous or vexatious under rule 13(2)(d). In any event, rule 13(3) was not conformed with, either by the Notice of Hearing dated 14th March, or at the hearing itself on 8th April.

22.	We turn then to the order for particulars and the appellant’s attempts to comply with that order. The relevant requests incorporated into the order are Requests numbered 4 and 5 in the Request settled by Mr Weiniger and dated 4th January 1998. It is convenient to deal with those requests separately.

Request No. 4

23.	So far as is material, the request reads as follows:

“OF: “Breach of Contract over pension rights.)
Request 4.
(i)	Please set out the full terms of the contract for pension rights relied on which are material to the claim.
(ii)	In particular if it is contended that there has been any variation of the terms of the contract otherwise than (i) as initially agreed as recorded in the Details of Appointment, … [then give particulars of the variation].
(iii)	[Is a request for particulars of the quantum of the claim arising under this head of breach of contact].”

24.	The final response to that request, contained in the appellant’s letter of 17th March 1998, which the Chairman expressly took into account was, again so far as is material, as follows:

“(i) and (ii): All the terms including implied terms of the Applicant’s contract of Employment (incorporating the Local govt Superannuation Regulations). Taking steps to inform employees of valuable options and implications of not taking up at the commencement of employment, of which they could not otherwise be expected to be aware is the duty implied in the contract of employment.”

	And in relation to (iii) a calculation is there set out as to the loss said to have resulted from the alleged breach of the implied term of contract.

25.	Mr Bari submits that the appellant has there set out an implied term of the contract akin to that found by the House of Lords to exist in the case of Scally v Southern Health & Social Services Board [1991] IRLR 523, and that she has quantified her claim for breach of that implied term.

26.	Mr Weiniger submitted that the appellant has failed to raise any arguable case based on an implied term of the contract. He proposed to distinguish the case of Scally on the facts.

27.	It seems to us for the purpose of this appeal that the question is not whether the appellant has raised an arguable case, but whether she has sufficiently particularised her claim for breach of an implied term of the contract. We are quite satisfied that she has, and further that the respondent is well able to meet that claim, as Mr Weiniger has demonstrated in his skeleton argument prepared for the purpose of this appeal. There is no prejudice to the respondent in this respect. Accordingly, following the approach of this tribunal (Wood J presiding) in National Grid Co. v Virdee [1992] IRLR 555, we have concluded that the Chairman was wrong to strike out this part of the claim. It was a wrong exercise of discretion, alternatively, an exercise of discretion based on wrong principles, to strike out this part of the claim under rule 4(7).

Request No. 5

28.	Here different considerations apply.

29.	The Request was formulated in this way:

“OF: “.. refusal to exercise .. discretionary powers .. adversely affecting … benefits”
Request 5.
(i)	Please set out the full terms and provisions of the discretionary power averred to subsist so far as the same are material to the claim. …”

	And then there are requests to identify any documents, statutes or statutory instruments relied upon in support of the answer under (i).

30.	The answer given by the appellant in her letter of 17th March 1998 sets out the basis on which it is said that the discretionary power existed, but wholly fails to show how the exercise or non-exercise of that discretion is material to the claim based on breach of contract. That is perhaps not surprising. There will rarely be a contractual obligation to exercise a discretionary power. It happens, occasionally, in the employment field in relation to discretionary bonuses, but there is nothing in the appellant’s pleadings in this case which indicates any nexus between the respondent’s contractual obligations [“the claim”] and their failure to exercise the alleged discretionary power. It is not that this part of the claim is hopeless under rule 13(2)(d), it is that no particulars of the necessary nexus, as ordered, have been given for the purposes of rule 4(7).

31.	In these circumstances we can see no grounds in law for interfering with that part of the Chairman’s order which relates to the subject matter of Request 5.

32.	The result is that we shall allow this appeal to the extent that we set aside the strike out order in part, and direct that the breach of contract claim set out in paragraph 5 of Box 11 of form the IT1 be remitted to a fresh Employment Tribunal for hearing on its merits, save that the words appearing in paragraph 5 of Box 11:

“refusal to use the discretionary powers in the interest of justice by LBWF, adversely affecting my benefits”

	remain struck out under rule 4(7), which provides that the whole or part of the Originating Application may be struck out for non-compliance with an order made under rule 4(1). It is that part only in respect of which the appellant has failed to comply with the order of 16th February 1998.