LOCAL GOVERNMENT PENSION APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (the 1995 regulations)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

1.                  I refer to your letter of 19 January 1999 in which you appeal (under regulation 102 of the 1997 regulations) on behalf Mr XXX to the Secretary of State for the Environment, Transport and the Regions against the decision of Mr XXX, the Appointed Person.

2.                  The Appointed Person upheld the decision of XXX (the council) that overtime worked by Mr XXX was not contractual and therefore not pensionable pay under the local government pension scheme (LGPS) regulations.

3.                  The question for decision: The question for decision by the Secretary of State is whether payments received by Mr XXX for overtime were pensionable remuneration for the purposes of the 1995 regulations.

4.                  The Secretary of State has considered all the representations and evidence.  You enclosed more documents in support of your case with your letter of 19 January 1999 than were seen by the Appointed Person, and the Secretary of State has therefore had to consider whether they contain significant new evidence representing a significant shift in your position which would warrant submitting the case back to the Appointed Person for re-consideration.  He has concluded this is not the case and he has considered all the papers as part of this appeal.

5.                  Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations.  He finds that payments received by Mr XXX for overtime were not pensionable remuneration for the purposes of the 1995 regulations.  His decision confirms that made by the Appointed Person.  The Secretary of State’s reasons and the regulatory provisions which he considers apply in Mr XXX’scase are set out in the annex to this letter, which forms an integral part of this decision.  He is acting judicially and has no power to modify the way the regulatory provisions apply to the facts of the case.  Having made his decision he has no power to alter it but you may refer the matter to the Pensions Ombudsman or to the High Court.  Because of this the Secretary of State’s officials cannot discuss the case further.

6.                  This completes the second stage of the internal disputes resolution procedure.  The Pensions Advisory Service (OPAS) is available to assist members and beneficiaries in connection with difficulties which they have failed to resolve.  Their address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 233 8080).

7.                  The Pensions Ombudsman may investigate and determine any complaint or dispute of fact or law in relation to the LGPS made or referred in accordance with the Pensions Schemes Act 1993.  His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 834 9144).

8.                  EVIDENCE RECEIVED

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

(a)               from you: letter dated 19 January 1999 (with enclosures); and

(b)               from the Appointed Person: letter dated 3 February 1999.

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

(a)               in 1980 Mr XXX commenced employment with the council;

(b)               since commencing work for the council he was regraded several times, regrading from 1 April 1994 being in the position of a Senior Hallkeeper;

(c)               as a Senior Hallkeeper he worked shifts and overtime; and

(d)               in December 1997 he ceased employment with the council.

3.                  In your appeal to the Appointed Person you maintained that Mr XXX’s overtime was contractual.  The evidence you submitted included a previous decision by the Secretary of State, a decision by the principal pensions offer in the case of another council Hallkeeper calling for deduction of contributions from overtime payments and for this to apply to other Hallkeepers, and various documents showing duties of Assistant Hallkeepers, Hallkeepers and Senior Hallkeepers.

4.                  The Appointed Person found that Mr XXX’s contract made no reference to overtime being contractual and that the council’s evidence referred to a case where an employee lost entitlement to contractual overtime when appointed as a Hallkeeper.  He found Mr XXX’s case differed from the earlier case decided by the Secretary of State as Mr XXX’s job description was for a different post and the wording omitted references to a more senior member of staff being able to direct attendance.  He regarded another example presented of a Hallkeeper’s overtime arrangements as unreliable due to inconsistencies.

5.                  The grounds of your appeal are fully set out in your letter of 19 January 1999.  In short you argued that inclusion of a contractual requirement to work overtime in the contract of employment is not required by the LGPS regulations, but that it was a condition of employment under the appellant’s job descriptions.  You contended that the Appointed Person ignored your evidence and accepted hearsay from the council.

6.                  The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply.  When Mr XXX ceased working for the council the 1995 regulations applied. His pensionable remuneration would have been calculated by reference to regulation D1.  This is turn referred to “remuneration” which is defined in regulation C2.  The definition specifically excluded “payments for non-contractual overtime”.  The issue to be resolved therefore is whether payments for overtime were contractual or non-contractual for the purposes of the 1995 regulations.

7.                  The Secretary of State takes the view that, for the purposes of the 1995 regulations, contractual overtime is work which is required under the terms of or to fulfil the person’s contract 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.

8.                  The Secretary of State considers it relevant, in deciding whether the overtime was contractual, to have regard first, but not only, to Mr XXX’s contract of employment.  No copy of the contract has been provided.  However it has not been disputed that the only  contract appears to be one given to him on joining the council in 1980.  It is also not disputed that this does not contain a requirement to work overtime.  The Secretary of State does not regard this as conclusive.  No claim has been made that the contract states that any overtime worked will not be treated as contractual, or that it expressly precludes him being required to work overtime to fulfil the contract. The Secretary of State concludes that the contract is silent on the issue.

9.                  The Secretary of State regards the performance of duties that must be undertaken to meet the requirements of the employee’s post, such that if he refuses to carry them out he may be liable to disciplinary action, as being necessary to fulfil his contract of employment.  The Secretary of State therefore considers it pertinent to have regard to the duties which Mr XXX was required to perform.  For the period during which his pensionable remuneration was assessed, Mr XXX was a Senior Hallkeeper.  The Secretary of State does not therefore consider it relevant for the purposes of this appeal to base his conclusions on the job descriptions for his earlier posts of Assistant Hallkeeper and Hallkeeper.  Nor does he consider the Senior Hallkeeper job description signed by the Staff Side Secretary on 13 August 1990 to be the appropriate one; it is not specific to Mr XXX and was superseded by a revised one which was specific to Mr XXX in 1994.  For the purposes of this appeal the Secretary of State therefore regards the agreed job description signed by Mr XXX on 23 March 1994, and by the Staff Side Secretary on 11 April 1994, as the relevant formal document setting out his duties as Senior Hallkeeper.  In the Secretary of State’s view, if Mr XXX was required to work overtime to undertake any of those duties which were a requirement of his post, that overtime would be contractual.  Any contentions whether Mr XXX regularly did, or never refused to, work overtime are not conclusive.  The relevant question is whether he was required to do so.

10.              In your submission you draw attention to item 12 of the job description which states “As required to attend, or ensure adequate staffing to steward, Assembly Hall functions, Council/Committee meetings and other events ensuring that all rooms and areas are prepared to the hirer’s requirements and that Council and Statutory regulations are enforced”.  The Secretary of State notes that you contend that the overtime worked by Mr XXX was in pursuit of this duty, in that you maintain that he had to stay beyond the contracted hours of his shift until the meetings were finished.  The council maintain that he was not required to stay beyond those hours, although they have not disputed that the meetings in question did continue beyond then and that Mr XXX did so remain and work overtime.

11.              The Secretary of State notes that the duty in the job description does not place any restriction on attendance at those functions or meetings to within Mr XXX’s normal working week or within his shift rota.  The Secretary of State has considered whether the wording “As required to attend, or ensure adequate staffing to steward” denotes that Mr XXX had a choice whether to attend such functions himself or to delegate the task to others.  The words “or ensure adequate staffing to steward” do not appear on the job descriptions of hallkeepers, only on that of Mr XXX as Senior Hallkeeper.  The Secretary of State takes the view that the different wording does imply a significant distinction between the posts and that Mr XXX could not be personally required to attend provided that he ensured adequate stewardship by other staff.  The Secretary of State considers that Mr XXX had the authority to ensure this in his position as manager of the hallkeepers who could be required to attend under the terms of their job descriptions.  The Secretary of State concludes that Mr XXX was not under a personal contractual obligation to attend these functions and that any overtime worked if he did so attend was non-contractual.