Andrews v Kings College NHS Foundation Trust & Anor

An employer subject to the Scally implied term must take reasonable steps to draw an employee’s attention to a valuable contractual pension right which requires action to obtain it. The duty is individual in origin, but it does not guarantee that information is received by every employee. Reasonable general arrangements for dissemination may discharge it.

Whether the steps were reasonable is a question of fact. An appellate tribunal will not interfere where the Employment Tribunal correctly directs itself and reaches a conclusion open to it on the evidence.

The claimant, a part-time nurse employed from 1982 to 2010, sought pension rights or compensation for three periods of employment.

The Employment Tribunal held that she would have joined the NHS Pension Scheme during the period from 1 April 1988 to 31 March 1991 had she been eligible and informed. It also held that, after part-time staff became eligible to opt into the scheme in 1991, the Trust had taken reasonable steps to notify her and had not breached the implied contractual term identified in Scally.

She appealed both the form of the declaration for the second period and the dismissal of her claim for the later period. The central issue was whether the Tribunal had erred in finding that the Trust’s use of posters and a leaflet attached to payslip envelopes was a reasonable means of communicating pension eligibility.

1. Appeal dismissed. The period 2 aspect was dismissed on withdrawal after the EAT explained that the Tribunal’s decision meant that the claimant was entitled to scheme membership from 1 April 1988 to 31 March 1991, and that the Second Respondent had to obtain and provide contribution figures.
2. The Tribunal correctly identified the implied Scally term. Its three preconditions were met, so the Trust was required to take reasonable steps to notify the claimant of her right to join the pension scheme.
3. The term did not require the Trust to ensure that the information was received by every individual employee. Although the duty arose in each employee’s contract, it was sufficient to take reasonable steps to disseminate the information to that employee. A contrary approach would impose a guarantee of receipt rather than a duty of reasonable notification.
4. The Tribunal’s references to attaching the leaflet to payslips of “all” employees described the intended general method of distribution, including full-time and part-time employees. Read as a whole, its reasons did not find that every employee, including the claimant, necessarily received a leaflet. The Tribunal had not overlooked evidence of a small number of reported failures of receipt.
5. The Tribunal was entitled to find that attaching a leaflet to payslip envelopes, supplemented by posters, was reasonable even though the system was imperfect and further precautions could have been taken. Its factual conclusion was open to it and was not perverse.
6. Section 2 of the Employment Rights Act 1996 did not enlarge or inform the contractual Scally duty. Any statutory breach gave rise to a separate statutory remedy.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal clarified the effect of the Employment Tribunal’s period 2 declaration and upheld dismissal of the period 3 contractual claim.
• Employment Tribunal, London South: In a judgment sent to the parties on 25 March 2013, it found the period 2 claim well-founded and dismissed the period 3 claim, holding that the Trust had taken reasonable steps to notify the claimant of pension eligibility.