Antigua Public Utilities Authority v Malcolm Alphonso Edwards
| Jurisdiction | UK Non-devolved |
| Judge | Lord Walker of Gestingthorpe |
| Judgment Date | 02 October 2003 |
| Neutral Citation | [2003] UKPC 64 |
| Court | Privy Council |
| Docket Number | Appeal No. 35 of 2002 |
| Date | 02 October 2003 |
[2003] UKPC 64
Privy Council
Present at the hearing:-
Lord Hoffmann
Lord Millett
Lord Scott of Foscote
Lord Walker of Gestingthorpe
Sir Christopher Staughton
[Delivered by Lord Walker of Gestingthorpe]
On 4 July 1973 the appellant Antigua Public Utilities Authority ("the Authority") was established by the Public Utilities Act ("the Act") with a statutory monopoly to supply electricity, telephone services and water within Antigua and Barbuda. It took into its employment a considerable number of individuals who had previously been public officers appointed by the Public Service Commission ("the PSC"). Those individuals were initially seconded to the Authority (while remaining public officers) but they were asked to decide whether to continue as public officers on secondment or to leave the PSC and enter employment with the Authority. The majority elected to transfer to the Authority, and their transfers took effect on 1 January 1974. One of them was the respondent Mr Malcolm Edwards, and this appeal is concerned with the terms (especially as regards retirement benefits) on which he became an employee of the Authority.
Mr Edwards was in an unusual (although probably not unique) position because although he was an established public officer he had not been appointed for an indefinite period. In July 1973 he was about half-way through a fixed-term contract for a period of three years. This was a renewal (although only after some dissatisfaction on the part of the PSC, and a ministerial intervention) of a two-year contract under which Mr Edwards had been appointed as an electrical engineer under a formal offer letter dated 1 December 1969. Mr Edwards (although a born citizen of Antigua and Barbuda) was at that time resident in England. He began work in Antigua on 23 February 1970. The PSC's decision to renew his contract for a further period of three years was taken on 5 April 1972.
Mr Edwards' starting salary was $9,000 a year. The formal offer letter dated 1 December 1969 stated,
"On the satisfactory completion of the contract, you will be eligible for a gratuity at the rate of 12½% of your basic salary."
It was conceded that this was in practice understood as 12½% of aggregate salary earned during the term of the contract, not annual salary, and Mr Edwards received a gratuity on that basis at the end of his initial two-year term. It is also common ground that Mr Edwards, as a public officer on a fixed-term contract, would not have been entitled to a pension under the statutory scheme for public officers (although he would be entitled, and indeed is now entitled, to a modest pension under social security legislation).
The effect of the Act was not to privatise the electricity, telephone and water industries, but to put them under the management of a new public body, subject to ultimate ministerial responsibility and control. The Act established the Authority as a body corporate consisting of nine persons (designated as Commissioners), subject to policy directions given by the Minister and a residual power for the Cabinet to intervene in an emergency (see sections 3, 37 and 38 of and Schedule 1 to the Act). The evidence of Mr. Benjamin (the Authority's General Manager at the time when Mr Edwards left the Authority's employment) was that throughout his time at the Authority (which began in 1987) there was no Board (meaning, apparently, the Commissioners) and that the Cabinet acted as the Board. This rather surprising evidence was not explored before their Lordships. By section 3 (4) of and paragraph 1 of Schedule 2 to the Act the Authority has power to appoint and remunerate employees and to establish and maintain a pension scheme for employees. However it is common ground that no funded pension scheme has ever been established.
On 3 July 1973 (that is on the very eve of the enactment of the Act and the establishment of the Authority) the Minister of Public Utilities and Communications sent a letter to all staff members in those parts of the public service which were to be affected by the Act. This letter calls for quotation in full although it is the third paragraph which is most relevant:
"In view of the recent amendments to the second schedule of the Public Utilities and Port Authority Legislation, and in view of certain public pronouncements made by individuals purporting to be on behalf of the Public Service Association, I wish to indicate to you fully Government's policy regarding the staffing of both Statutory Authorities.
All Public Servants i.e. Civil Servants or members of the establishment will be seconded with their permission to various departments in which they now work; as seconded officers they will of course, continue to be members of the Public Service for all purposes, i.e. their emoluments, disciplinary proceedings and their pension schemes.
At a later date, those persons who elect voluntarily to leave the service and work for either of the Authorities shall have their service with the Authority deemed pensionable service, and this will be gazetted.
Government wishes to stress that Government Departments forming a part of the Statutory Authorities are not being handed over to private enterprise but are in fact genuine authorities wholly owned by the Government and people of the State, and will be operated by a Statutory Board answerable to a Minister of Government and thus through him to Parliament. Stanley Consultants, for a fee, will provide management services on contract, and will not have shares in or benefit from any profits of either Authority. To say, therefore, that these departments are being handed over to private enterprise and therefore changing the status of workers is false and calculated to mislead.
Government is satisfied that with your goodwill and cooperation this turnover can be effected with a minimum of problems and without any loss of status to public servants, and indeed feels that a wide range of benefits will arise not only to Public Servants and non-established staff, but to the State as a whole."
It is common ground that this letter was sent to all the staff affected by the changes, whether or not they were prospectively entitled to public service pensions. It was sent to and read by Mr Edwards. The letter's evident purpose was to reassure the staff to whom it was sent and to dispel doubts and rumours.
On or about 4 July 1973 the Assistant Secretary to the Electricity Division, acting on the instructions of the Minister, wrote a single letter addressed to and circulated round 34 staff members in that division. Each was asked to indicate whether he or she wished to be seconded or would prefer to "turn over immediately" to the Authority. All but two of the addressees elected to turn over, and Mr Edwards was one of the majority. Their elections were given effect by a minute dated 31 December 1973 sent by the Chief Establishment Officer of the PSC to the Permanent Secretary at the Ministry. So from 1 January 1974 Mr Edwards was no longer a public officer on secondment. Instead he was employed by the Authority.
On 5 February 1974 the Chief Establishment Officer sent another minute to the Permanent Secretary. The minute referred to the previous minute and continued as follows:-
"2. I forward herewith individual letters addressed to the following officers of the Electricity Division who exercised their option to be seconded or to turn over to the Public Utilities Authority:-
[There follow two names of those who elected for secondment, and 26 names of those who elected for transfer, not including the name of Mr Edwards].
3. A further communication will be addressed to you with regard to the officer employed on contract.
4. There is no record in this office of any further options from established officers. Grateful to receive the options of the remaining officers of the Electricity Division in order that their positions may be clarified."
It is common ground that paragraph 3 of this minute must have been intended to refer to Mr Edwards. There was, as it happens, a similar letter dated 5 February 1974 relating to staff of the Port Authority, which also seems to have had one officer on contract. But no copy of any separate letter, tailor-made for Mr Edwards' special position (or of any similar letter to an officer on contract with the Port Authority) has ever been found. The form of the letter dated 2 February 1974 sent to those listed as transferred to the Authority is extant. It was as follows:-
"I am to inform you that consequent upon a Government decision, the Public Service Commission has agreed that as you have signified your intention to be employed by the Public Utilities Authority, you be officially released from your appointment as [job description in the public service] with effect from 1st January, 1974.
2. Government has also confirmed that your service with the Public Utilities Authority will be pensionable and such pension rights will not be less favourable that those enjoyed with Government.
3. Your rights and other benefits will be borne by Government up to and including 31st December, 1973."
Mr Edwards' evidence at trial was that he received a letter "word for word" the same as the second paragraph of the standard letter. The trial judge did not accept that evidence and the Court of Appeal did not differ from the judge's view. Their Lordships would not depart from those concurrent findings that Mr Edwards did not receive the standard letter. That does not however conclude the matter. The minute of 5 February 1974 referred to a further communication which was to be sent in relation to Mr Edwards. Either the Chief Establishment Officer of the PSC overlooked the need for the further...
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