THE INDUSTRIAL TRIBUNALS
CASE REF: 72/07
CLAIMANT: Patrick Donnelly
RESPONDENT: BJM Chartered Accountants
DECISION
The unanimous decision of the tribunal is that the claimant has failed to establish on the balance of probabilities that there was a breach of contract by the respondent in the provision of pension arrangements to the claimant. His claim for breach of contract therefore is dismissed. The tribunal also unanimously finds that there was no evidence as to unauthorised deductions of wages, and that aspect of the claimant's case must also fail.
Constitution of Tribunal:
Chairman: Mr T Browne
Members: Dr Eakin
Mr Dodds
Appearances:
The claimant appeared and represented himself.
The respondent was represented by Mr McGleanan, Barrister-at-Law, instructed by Worthingtons, Solicitors.
Issues
The tribunal had to determine whether or not there was in the contract of employment a provision regarding pension provision, whereby the respondent agreed to pay a contribution of £3,600 per annum into a stakeholder pension scheme on behalf of the claimant. The claimant also raised the case in his application form that there had been an unlawful deduction of wages, and also, in terms and in evidence, that he had not been provided with a contract of employment throughout the course of his employment with the respondent.
The Facts
- It was common case that the claimant had joined the respondent's accountancy firm as a tax manager in April 2006. It was also common case that before taking up employment in and around January 2006 the claimant had met with Mr McGinn the principal in the firm, regarding the terms and conditions of his employment. As a result of the meeting between himself and Mr McGinn, Mr McGinn wrote to the claimant confirming the terms and conditions of his contract of employment on 13 January 2006. The first part of that letter refers to staff pension and states "stakeholder pension provided. Details available on request."
- The claimant in evidence and throughout was emphatic that he had reached an agreement with Mr McGinn before taking up employment that the pension provision by the respondent would be the sum of £300 per month into the stakeholder pension. That, in his case, would mean a total annual contribution by the respondent of £3,600.
- The respondent however was equally emphatic that no such agreement had been reached between the two. The respondent's case was that in common with all or most of the employees in the firm, that a 3% custom and practice amount would be paid by them to meet any stakeholder pension contributions by each employee.
- The respondent's case was that each employee was advised upon taking up employment that there was a stakeholder pension fund available, but that they would have to notify the respondent of their intention to take it up, otherwise no pension provision would be made by the respondent on behalf of each employee.
- The respondent produced documentation which satisfied the tribunal that the overwhelming majority of their employees were in fact part of the stakeholder pension scheme involving 3% contributions by each party. That system clearly had been in place since at least 2001, although the claimant denied having any knowledge of such a system. It is of note in this regard that there was no evidence before the tribunal, other than that asserted by the claimant in respect of him, that there was any other pension arrangement relating to any other employee.
- Mr McGinn was just as emphatic in his denial of the discussion about the 3% contribution as the claimant was in his assertion of it. It is of note however that in his letter to the claimant in January 2006 Mr McGinn did not feel it necessary to refer to the specific details of the apparently agreed 3% contribution, relying instead upon the details available on request referred to earlier. In the opinion of the tribunal, that phrase would tend to confirm Mr McGinn's evidence that in fact the pension scheme related to all the employees, and not just to the claimant. On that basis, it would appear that the stakeholder pension outlined in the letter of 2001 was the scheme to which Mr McGinn was referring. That in the opinion of the tribunal tended to confirm his view and his evidence, that no special provision was being made or contemplated on behalf of the claimant.
- The tribunal also heard evidence from Mrs Mary McAllister who is a partner in the respondent's accountancy firm, dealing with personnel and human resources issues and also overseeing the accounts. It was her evidence that the claimant had never filled in the forms required for the stakeholder pension scheme to operate in respect of each contributing employee.
- Mrs McAllister emphatically denied the claimant's assertions that he had mentioned the pension issue twice to her within the period of his employment.
- The tribunal in trying to establish which if either of the two versions was correct then had to have regard to any existing documentation or other records which might shed some light on the versions given by both. The tribunal found it significant that it was not until the contract of employment of the claimant was terminated in September 2006 that there was any record of his dissatisfaction with his pension arrangements. The tribunal found it hard to reconcile the claimant's emphatic assertion that his pension provisions were of paramount importance to him with the complete absence of any written complaint or of e-mails or of anything else which would tend to suggest that he was raising this matter formally with his employers. Whilst on the other hand, it would be unusual for somebody who had been used to having a fixed and generous pension provision from his previous employment not to have such an arrangement in place, the tribunal found it a fact that he had not in fact raised it in the terms alleged by him in his evidence. That finding was based largely upon the credible evidence produced by the respondent in the oral evidence of Mr McGinn and Mrs McAllister, but more particularly in the complete absence of any written records which would confirm either the fact of the claimant's complaints to the respondent, or the existence of any scheme other than that produced by the respondent in evidence to the tribunal.
Conclusions
Whilst there was evidence that the claimant was in a somewhat unique position within the company because of the skills that he brought, the tribunal concluded, on balance, that the claimant had failed to prove that there was in relation to him a pension provision agreement with the respondent which took him outside the scope of the pension arrangements made by them on behalf of some three quarters of their other employees. That aspect of his claim must therefore fail. Consequently, in relation to the allegation of unauthorised deduction of wages, this, in as far as it relates to the failure to pay wages and pension benefits anticipated by the claimant failed to amount to such an unauthorised deduction and must also fail.
In the absence of a finding in favour of the claimant or an award to him by the tribunal, the tribunal, by virtue of Article 27 of the Employment (Northern Ireland) Order 2003, does not have power to make any award for the failure by the respondent to provide the claimant with his employment particulars.
Chairman:
Date and place of hearing: 8 June 2007, Belfast.
Date decision recorded in register and issued to parties:
