Local Government Pension Scheme Appeal Determination By The Secretary of State

3. In your letter of 2 March 1998 you refer to the fact that your pensionable pay was based on £12,581 not £13,000 although you do not specifically raise any disagreement about this. It appears from the papers we have that you have not referred any point of disagreement about the pensionable pay used to calculate your pension to the Appointed Person. The Secretary of State can only reconsider a disagreement if it has first been referred to the Appointed Person. If you have such a disagreement about the pensionable pay used to calculate your pension you may wish to consider referring the matter to the Appointed Person.

4. The only question for determination by the Secretary of State therefore is whether the overtime payments are pensionable.

5. The Secretary of State has considered all the representations and evidence. Copies of all the documents supplied by the Appointed Person have been sent to you under cover of the Departments letter dated 19 February 1998. Further information was sought from the company and their letter dated 21 April 1998 was copied to you under cover of the Departments letter of 22 April 1998.

6. Secretary of States determination: The Secretary of State having taken into account the appropriate regulations, finds that, for the purposes of the 1995 regulations, your overtime payments are not pensionable. His decision confirms that of the Appointed Person. The Secretary of States reasons and the regulations which he considers apply in your case are set out in the annex to this letter, which forms an integral part of the determination. He is acting judicially and has no power to modify the application of the regulations to the facts of the case. Having made his determination he has no power to alter it unless instructed to in a judgement by the High Court. Because of this officials may not discuss the case further.

7.The Occupational Pensions Advisory Service (OPAS) is available to assist members and beneficiaries in connection with difficulties which they have failed to resolve. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 233 8080).

8. The Pensions Ombudsman may investigate and determine any complaint or dispute of fact or law in relation to the local government pension scheme. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 834 9144).

EVIDENCE RECEIVED

1. The following evidence has been received and taken into account:

a. from Mr XXX: letters dated 5 January and 2 March with enclosures and 3 May 1998; and

b. from the Appointed Person: letter dated 18 February 1998 with enclosures (listed in the Department's letter of 19 February 1998); and

c. from the company: letter dated 21 April 1998.

REGULATIONS CONSIDERED AND REASONS FOR DECISION

2. From the evidence submitted the following relevant points have been noted:

a. you were employed by the company as a Sales and Marketing Assistant;

b. you were made redundant on 31 March 1997;

c. your Contract of Employment, which shows your job title as Allocation/Despatch Clerk, states your normal hours of work were 38 hours normally over 5 days, in accordance with duty roster/local agreement;

d. your Terms and Conditions of Employment, which also refers to your job as Allocation/Despatch Clerk, states "HOURS OF WORK: Any, to ensure completion of duties".

3. The Secretary of State in reaching his decision has had regard to the regulations, which in his view, apply. A person's pensionable remuneration is used to calculate their local government pension. The 1995 regulations explain what a person's pensionable remuneration consists of (regulations D1 and C2 of the 1995 regulations). The Secretary of State has had to consider whether the overtime payments made to you were for contractual or non-contractual overtime. This is because under the 1995 regulations non-contractual overtime payments are not considered as remuneration (regulation C2).

4. You draw attention to your terms and conditions of employment and contend that you were required to work any amount of hours to finish the job and that you could not carry out the job properly working just 38 hours a week. You consider that you were the only person contractually employed to do this work following the dismissal of the other allocation officer and, as he was not replaced, you had no alternative but to work the extra hours to complete the work. You disagree with the company's contention that the work of the other allocation officer was distributed between the General Manager, yourself and the general office staff. Furthermore with the exception of the drivers you were the only person working at XXX depot. You state that you were never off sick and when on holiday the only person who could do your job was one senior driver. You consider the only person who could comment on how the operations were run was your General Manager Mr XXX. You further contend that Mr XXX promised on several occasions that he would discuss changing your contract. He did not and your contract of employment was not changed. You very strongly dispute the company's view that there was no question of your being disciplined by them if you only chose to work 38 hours.

5. The company contend that your Contract of Employment stipulates a 38 hour week. There was no guarantee of overtime although the job required flexibility on start and finishing times to accommodate the nature of the job. They maintain that if you had not wished to work overtime there was no question of disciplinary action being taken. They further contend that you were not the only person employed to carry out allocation and dispatch duties, other members of staff had performed these duties including the Senior Drivers and clerical staff who were knowledgeable of the various regulations. They acknowledge that this was usually during periods of holidays/sickness but had you not wished to work overtime they would have utilised such resources. They state that 'Hours of Work" in the Terms and Conditions of Employment refer to the flexibility of hours, start and finish time to ensure completion of duties.

6. The Appointed Person noted that the terms and conditions of your employment as an allocation/despatch clerk states that your hours of work were 'any to ensure completion of duties. He asked the company whether or not you could have been disciplined if you didn't work the additional hours. They informed him 'that there was no question whatsoever of Mr XXX being disciplined if he chose only to work his contractual week of 38 hours. Mr XXX concluded that he had no reason to question this statement.

7. The Secretary of State notes that your contract of employment refers to your job title as Allocation/Despatch Clerk (XXX) as does your terms and conditions of employment although in the letter of formal notice of termination of employment it refers to your post of Sales and Marketing Assistant. Neither you, the company nor the Appointed Person have raised this as an issue and the Secretary of State therefore takes the view that this is not a relevant issue.

8. The Secretary of State takes the view that for the purposes of the 1995 regulations contractual overtime is payment for work which is required under the terms of or to fulfil the person's contract of employment and which is performed outside normal hours of employment, that is where failure or refusal to carry out the work would result in a breach of contract which could result in disciplinary action being taken. The Secretary of State notes that it is not disputed that you were paid overtime. Your contract of employment refers to the normal weekly hours of work as 38, with no reference to overtime. He notes your contention that your manager, Mr XXX, promised to discuss changing your contract, but it is accepted that he did not do so. He further notes that the company have stated that there was no question of you being disciplined if you chose only to work your contractual week of 38 hours and that there were other members of staff who could and did perform the duties. He notes that you dispute this. The Secretary of State does not consider on the evidence available that you have convincingly demonstrated that you would have been disciplined for breach of contract if you had refused to work overtime.

9. The Secretary of State has considered the terms and conditions of employment of an Allocation/Dispatch Clerk under which the hours of work refer to 'Any, to ensure completion of duties. The Secretary of State accepts that the term 'Hours of work: any" could be ambiguous in that it might be capable of construal as meaning the number and not simply the disposition of the hours worked. Nevertheless he is satisfied that it does not override the contractual hours of 38 per week to the extent of contractually requiring overtime to be undertaken.

10. The Secretary of State therefore concludes that the overtime payments were for non-contractual overtime and do not count as pensionable remuneration for the purposes of the 1995 regulations.