Three journalists were dismissed on notice in circumstances where the redundancy provisions of their contract applied. Those provisions stated that the journalists should receive ‘any entitlement under the pension scheme’. That scheme provided that ‘A member having at least 10 years of pensionable service and retiring with the consent of the company . . shall be entitled to a deferred pension . .’. The issue was whether the journalists had so retired ‘with the consent of the company’.
Held: The court discussed the authorities, and Brightman J said: ‘according to the ordinary use of language, an employee who is dismissed is not, prima facie, an employee who is retiring with the consent of those who dismiss him.’ and ‘Ought this prima facie meaning to be displaced in the present case by reference to the wording of other rules? First, there is the supposed anomaly of the post-pension age employee who stays on at the company’s request and is (perhaps accidentally) deprived of his pension when ultimately the company gives notice to terminate his employment. Then there is the reference to the ex-Western Morning News journalist, who is ‘dismissed’ without becoming entitled to a pension under the early retirement clause. Do these provisions provide a sufficient justification for departing, in the early retirement clause, from the prima facie meaning of the word ‘retiring’? ‘After weighing, as best I can, the arguments advanced on both sides, I feel reluctantly compelled to decide against the plaintiffs’ claim. My reasons are as follows: (1) It would, in my judgment, be a misuse of language to describe a journalist who is given notice by the company as ‘retiring with the consent of the company’. The expression ‘a member retiring’ had it appeared on its own, would in my view, have prima facie excluded a case where the employee is dismissed. This is all the more so where it is coupled with the words ‘with the consent of the company’, because a person cannot, in any meaningful sense be said to consent to his own act; he can only consent to the act of another. (2) It would be natural for the company, when establishing a non-contributory pension fund, to exclude a dismissed employee from a deferred pension . . If the plaintiffs’ argument is correct, the most delinquent employee would be entitled to the same reward in terms of a deferred pension as the most loyal employee . . (3) I do not think that the plain meaning of the early retirement clause can be displaced by reference to the supposed anomaly under paragraph (ii) of rule C1 (the post-pension age employee). It may be that there is an anomaly under that provision which the company may wish to remedy under its power to alter the rules . . ‘
Judges:
Brightman J
Citations:
(1971) 11 Knight Industrial Report 413
Jurisdiction:
England and Wales
Cited by:
Cited – AGCO Limited v Massey Ferguson Works Pension Trust Limited, Bradbury, Chater CA 17-Jul-2003
An employee sought payment under his pension scheme on taking redundancy at the employer’s request. The scheme did not make explicit provision for payment in such circumstances.
Held: The court had to begin with the words used. The kernel of . .
Cited – Dorrell v May and Baker Ltd 1991
The employee took early retirement due to incapacity. He was dismissed. The question was whether he was entitled to a pension under the incapacity clause which spoke of a member who ‘retires on account of incapacity’, in which case he got an . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 21 July 2022; Ref: scu.185198
