Mr D Kinsman v Honeywell Normalair-Garret Ltd: 1401659/2015

Case No.1401659/2015 1 EMPLOYMENT TRIBUNALS Claimant David Kinsman Respondent Honeywell Normalair- Garret Limited Heard at: Exeter On: 25 & 26 May 2016 Before: Employment Judge Goraj Representation Claimant: Mr R Morfee, Solicitor Respondent: Mr A Short, Leading Counsel JUDGMENT ON A PRELIMINARY HEARING THE JUDGMENT OF THE TRIBUNAL IS THAT:- 1. The tribunal does not have jurisdiction to consider the claimant’s complaint of age discrimination contrary to sections 5, 13, 39 and/or 61 of the Equality Act 2010 by reason of its findings in respect of Issues 4, 5, 6 and 7 of the attached List of Issues. The claimant’s complaint of age discrimination is therefore dismissed 2. The tribunal does not have jurisdiction to consider/ the claimant’s claim pursuant to section 11 of the Employment Rights Act 1996 in respect (only) of the declarations identified at paragraphs 3 (a) and (b) of the attached List of Issues is, in any event, struck out by reason of its findings in respect of Issues 1 and 3 of the attached List of Issues. Case No.1401659/2015 2 RESERVED JUDGMENT BACKGROUND 1. By a claim form (A17- A30 of the bundle) which was presented to the tribunals on 6 August 2015, the claimant alleged that he had been unlawfully discriminated against by the respondent because of the protected characteristic of age contrary to the Equality Act 2010 (“the 2010 Act”). The claimant also sought declarations of certain alleged particulars of employment pursuant to the Employment Rights Act 1996 (“the Act”). Further details of the claimant's complaints are contained in particular, in the claimant’s amended reply to the respondent’s grounds of resistance at A80 -A 92 of the bundle. 2. This matter has been listed for a Preliminary Hearing (“the Hearing”) to determine the preliminary issues identified at paragraphs 1-8 of the list of issues ("the List of Issues") attached to the Case Management Preliminary Order dated 29 December 2015 (“the Order”) at pages A70-A78 of the bundle. A copy of the List of Issues is also attached to this Judgment. The tribunal is also required to determine an agreed additional preliminary matter in respect of Issue 4 as identified further at paragraph 110 below. The bundle 3. The tribunal has been provided with a bundle of documents which has been agreed between the parties ("the bundle"). The parties have also provided the tribunal with a bundle of legal authorities and associated legal provisions (" the authorities bundle"), an agreed chronology of main events and detailed written submissions. Background to the claimant’s claims 4. By way of background, the claimant’s claims relate to the operation of the respondent's pension arrangements and in particular, the introduction of a new defined contribution pension arrangement in 1998. At that time the respondent entered into a special arrangement with certain employees who met the age or age plus service criteria to supplement their benefits on retirement to a level to which they would have been entitled under the previous pension scheme if the new arrangement failed to match the former benefits (referred to below as “the Special Arrangement"). The claimant did not meet the above-mentioned criteria at the relevant time and was therefore not offered entry into the Special Arrangement. The claimant's age discrimination claim 5. The claimant clarified the nature of his age discrimination claim at the commencement of the Hearing. The claimant confirmed that he is pursuing a complaint of direct age discrimination contrary to sections 5 and 13 of the 2010 Act. In summary, the claimant confirmed that he contended that Case No.1401659/2015 3 he had been treated less favourably than others because of his age in respect of his exclusion from the benefits of the Special Arrangement which gave a guarantee to those employees who were entitled to it that they would receive a certain value in the payments which they would receive on retirement. The claimant contended that this was a continuing act of age discrimination which commenced on 1 October 2006 (the date upon which the relevant provisions of the age discrimination legislation came into effect) at which time the respondent should have taken the necessary steps to rectify the unlawful discrimination including in respect of service prior to 2006. The claimant also contended that such unlawful discrimination continued until his retirement on 13 May 2016 as he alleged that such benefits accrued on a daily basis until they became payable on retirement and further, that the claimant was therefore paid less during his employment than those who were admitted to the Special Arrangement. 6. The respondent denied the allegations including on the grounds that there had not been any actionable age discrimination and that any less favourable treatment was, in any event, justified for the purposes of the 2010 Act. The respondent further contended that the tribunal did not have jurisdiction to entertain the claimant’s age discrimination claim as the matter fell within the exemptions to the provisions of the 2010 Act and/or that the claimant's claim was, in any event, outside the applicable statutory time limits as it related to a contractual promise (the Special Arrangement) which was made in 1998 and which was a one off act or omission for the purposes of the 2010 Act. Other matters 7. By letter dated 12 April 2016, the claimant applied (a) for specific disclosure of the respondent’s documents relating to the Special Arrangement and (b) to join the trustees of the Honeywell UK Pension Scheme and the principal employer (Honeywell UK Limited) as additional parties to the proceedings. 8. This application was resisted by the respondent. 9. The tribunal directed that any issues relating to the above applications should be addressed at the Hearing. 10.The claimant confirmed at the commencement of the Hearing that he did not wish to pursue his application for specific disclosure at that time as the application had been made before his legal advisers had had an opportunity to interview Mr Colin Rose whom he would be calling as a witness at the Hearing. The claimant also confirmed at the commencement of the Hearing that he did not wish to pursue his application to join the trustees of the Honeywell UK pension scheme or the principal employer as additional parties at that time. The claimant further confirmed that (a) he did not contend that there had been any actionable breach of the age discrimination legislation by the above named trustees/principal employer and (b) that the application to join them in the proceedings had been brought purely for the purpose of procedural correctness in case there was any dispute about the claimant’s entitlement Case No.1401659/2015 4 to join the above mentioned pension scheme if his age discrimination claim was successful. Witnesses 11.The tribunal was provided with a witness statement and heard oral evidence from the following on behalf of the claimant:- (a) the claimant, (b) Mr Colin Rose, former employee, union convener and chairperson of the Westland staff pension scheme negotiating committee at the respondent and subsequently a regional trade union officer in the South West and (c) Mr Rhett Land an employee with the respondent. 12.The tribunal was provided with a witness statement and heard oral evidence from the following on behalf of the respondent :- (a) Mrs Cheryl Lim, Human Resources Director at part of the Honeywell Group and (b) Ms Sara Sturtivant, Human Resources Leader at Honeywell Aerospace Yeovil. FINDINGS OF FACT 13.The tribunal has made the findings of fact referred to below for the purposes only of determining the Preliminary Issues at paragraphs 1-8 of the List of Issues. The respondent 14.The respondent originated as a joint venture between AlliedSignal (now Honeywell) and GKN Westland. AlliedSignal Holdings Limited acquired GKN Westland’s shares in the respondent's immediate parent company in 1998. Extracts from the sale and purchase agreement dated 7 May 1998 are at B9 -B29 of the bundle. AlliedSignal was acquired by Honeywell in 2000. The respondent was also acquired by Honeywell at that time and changed its name accordingly. The claimant and the claimant’s employment history with the respondent 15.The claimant's date of birth is 7 April 1959. 16.The claimant was employed by the respondent between 7 October 1985 and 13 May 2016 on which latter date the claimant’s employment terminated by way of voluntary redundancy. The claimant's gross annual salary at the time of the termination of his employment with the respondent was around £48,000. The claimant's appointment as a skilled Wireman/Tester 17.Following a successful interview, the respondent wrote to the claimant by letter dated 15 August 1985 offering him employment with the respondent as a skilled Wireman/Tester. Case No.1401659/2015 5 18. This letter of offer, together with a copy of the associated Terms and Conditions of Employment relating to Production Staff Employees is at pages B3-B5 of the bundle. The letter of offer was signed by the respondent’s then Personnel Manager, Mr R A Gard, who is no longer in the employment of the respondent. 19. The respondent stated in the letter of offer that:- (1) The terms and conditions of employment for the appointment had been collectively agreed for the Production Staff Bargaining Unit. (2) It was a condition of employment that the claimant joined the Westland Works contributory Pension Scheme on the day that he fulfilled the eligibility criteria (the claimant joined such pension scheme during his period of employment as a skilled Wireman/tester). (3) Details of the pension scheme were set out in an explanatory booklet - a copy of which was enclosed. (4) The claimant was requested to confirm in writing his acceptance of the appointment together with a proposed commencement date. 20.The tribunal has not been provided with a copy of any letter from the claimant accepting the...