Harris v Lord Shuttleworth
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GLIDEWELL,LORD JUSTICE EVANS,LORD JUSTICE WAITE |
| Judgment Date | 24 November 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J1124-9 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CHANF 92/0619/B |
| Date | 24 November 1993 |
[1993] EWCA Civ J1124-9
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(His Honour Judge Moseley QC)
Before: Lord Justice Glidewell Lord Justice Evans Lord Justice Waite
CHANF 92/0619/B
MR. J. BURKE QC and MR. D. GRIFFITH-JONES (Instructed by Bond Pearce, Plymouth) appeared on behalf of the Appellant
MR. P. HOWELL QC and MR. J. CLIFFORD (Instructed by Hill Dickinson Davis Campbell, Liverpool) appeared on behalf of the Respondent
( )
Wednesday, 24 November 1993
The Plaintiff, Mrs Grace Jeanette Harris, was employed by the National & Provincial Building Society (the Society) from 28 May 1976 until 14 April 1986, when the Society terminated her employment by giving her three months' notice in lieu of salary. From l November 1977 until her employment came to an end she was a member of the National & Provincial Building Society Pension Fund (the Fund). Lord Shuttleworth and the other Defendants are the current Trustees of the Fund. Under the rules of the Fund which applied when Mrs Harris's employment was terminated, she was, at the least, entitled to a deferred pension payable when she reached the normal pension age of 60. However, Mrs Harris was only 45 years of age when her employment was terminated. She claimed, and claims, that the termination of her employment amounted to retirement which had occurred by reason of incapacity, and that she was and is therefore entitled to a full pension payable immediately on the termination of her employment, in accordance with rule 19 of the Pension Fund Rules. On the Trustees rejecting her claim, she commenced this action by writ issued on 3 March 1988. In her Amended Statement of Claim she seeks a Declaration that she is:
"entitled to the payment of an immediate non-deferred pension, and has been so entitled since 14 April 1986, calculated in accordance with the formula contained in Rule 19 of the Rules".
She also claims an account of all sums due to her from the Trustees of the Fund, an Order for the payment to her of sums found due on the taking of such an account, and damages as an alternative. In her case, the financial difference between a deferred pension and a pension payable in accordance with Rule 19 is considerable. A deferred pension would be at the rate of £1,026 per annum commencing when she reaches the age of 60. A pension payable under Rule 19 would be £2,853 per annum, payable from l4 April 1986.
On 27 July 1992 Judge Moseley QC, sitting as a High Court Judge, dismissed her claim in the action. Against this decision she now appeals. The Defendants seek to support the Judge's decision, not merely for the reasons he gave in his judgment, but on other grounds set out in a Respondent's Notice.
The facts
Mrs Harris was first employed by the Society in May 1976 as a receptionist/cashier at their branch at Helston in Cornwall. The then Manager was impressed by her abilities, and she was promoted in April 1977 to the post of Manager's Assistant. She applied to join the Pension Fund in August 1977, and her application was accepted with effect from l November 1977.
From an early stage in her employment with the Society, Mrs Harris was absent as a result of illness for substantial periods of time. In 1979 she was off sick for l3 weeks in total, in 1980 for 9 weeks. In September 1981, after attending the Society's Medical Adviser, Dr Campbell, she had an interview with Mr Lancaster, the Society's Personnel Manager, who told her that her attendance record was "appalling", and warned her that if it did not improve she could expect a recommendation from her Manager that she would be dismissed.
Mrs Harris's illness record did improve in the later part of 1981 and the early part of 1982, in which year she missed a total of nearly five weeks through illness. Thereafter her absences through illness continued spasmodically until l5 April 1985, when she went absent from work again. After that she never returned to work with the Society. Initially she submitted medical notes showing her to be suffering from a variety of ailments, but from the end of May 1985 onwards the diagnosis was that she was suffering from cervical spondylosis and agoraphobia. It seems that the Society did not have any clear contractual provision about the amount of sick leave it would allow an employee to take. However, it had a policy of allowing an employee to be absent on full pay for up to six months, and thereafter to reduce her to half-pay if she remained absent. At the end of 12 months continuous absence, the normal policy was for the Society to terminate the employment. This policy was applied to Mrs Harris. Moreover, it was decided to demote her to the position of Clerk/Typist, although in fact she never filled this position.
In January 1986 there began the correspondence which culminated in the termination of Mrs Harris's employment. On l4 January 1986 Mr Sowden, the Society's Personnel Support Controller, wrote a letter to Mrs Harris in which he said, inaccurately, that the services of the Society's medical adviser, Dr Campbell, had been:
"offered to you during your period of illness but you found it necessary to refuse them".
He continued:
"The Society's terms and conditions entitle you to six months' payment at full salary and six months at half-salary. Your entitlement will therefore cease on l4 April 1986. It is our practice where such a period of illness has not resulted in a return to work that at that stage employment will be terminated. I am therefore advising you that this practice would be applied in your case. Perhaps you will advise me at an early stage whether or not your return before l4 April is likely."
On 12 February 1986 Dr Lawton, Mrs Harris's General Practitioner, wrote to Mr Sowden a letter saying that her symptoms were cervical spondylosis and
"a classical agoraphobic situation".
He continued:
"However her present problem involves mainly her agoraphobic anxiety. At her worst, Mrs Harris was unable to go into the town without being accompanied by someone, usually her son. Her symptoms of anxiety were made worse when she approached the office."
"… I feel that Mrs Harris is unlikely to be able to return to her job with National Provincial even as a Clerk … I think Mrs Harris should be retired on medical grounds and I would be interested in hearing you views on this."
In response, Mr Sowden wrote directly to Mrs Harris saying that he had received the letter from Dr Lawton. He said
"Whilst very sympathetic to your problems I can only inform you that our advice is that your illness will not qualify you for retirement on ill health grounds."
He reiterated that it was the Society's practice that where a period of illness had not resulted in a return to work that employment would be terminated, and again asked her to say whether she was likely to return before l4 April.
In a letter dated ll March 1986 to Mr Sowden, Dr Tomlinson, a Consultant Psychiatrist, said of Mrs Harris:
"Although she has improved considerably with respect to her agoraphobic syndrome, she has been unable to return to work, as this was initially the centre of her agoraphobic disturbances. I think it is unlikely that Mrs Harris will ever be able to return to work in her original setting."
Mrs Harris also wrote to Mr Sowden again on l2 March 1986. He replied on l7 March in a letter in which he said:
"It is the Society's Medical Adviser who rules on whether or not a person should retire on grounds of ill health and it is for this reason that I asked you to come to Bradford for examination. I regret we cannot accept the information from any other doctor or specialist.
"I will therefore again offer you the opportunity to see Dr Campbell in Bradford before ll April 1986 but confirm my earlier point that if you have not returned to work by l4 April 1986 the Society will find it necessary to terminate your employment.
"It will be necessary for you to be examined by Dr Campbell should you be fit to return prior to your recommencing work."
In a letter dated 20 March 1986 Mrs Harris asked whether it would be possible to see Dr Campbell in, say, Bristol, to which City she could be taken by her husband and return on the same day.
The Society was unwilling to arrange this. By letter dated l0 April 1986 Mr Wood, the Personnel Manager of the Society, wrote that her employment would be terminated on l4 April 1986, that she was entitled to three months' salary in lieu of "service", but that she was not eligible for retirement on grounds of ill health under the Pension Fund Rules.
Mrs Harris replied saying she wished to appeal against this decision. In July 1986 the Society had a change of mind about the necessity for Mrs Harris to travel to Bradford in order to see Dr Campbell. In the event, an appointment was made for her to be examined by Dr Campbell in Bristol on l5 August 1986.
Following that examination, Dr Campbell wrote a note dated 26 August 1986 which concluded:
"Reports by two independent Consultant Radiologists on Mrs Harris's X-rays of her dorsal and cervical spine do not support a diagnosis of cervical and dorsal spondylosis which would justify a prolonged absence from work, and, since the pains Mrs Harris complains of follow no known neuro-anatomical pathway, I can only presume that Mrs Harris's symptoms are in the main psychogenic in origin and that her "cervical spondylosis" should be discounted as a reason...
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