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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Foster Wheeler Ltd v Hanley & Ors (Rev 1)  EWCA Civ 651 (08 July 2009)
Cite as:  EWCA Civ 651,  Pens LR 229,  ICR 374
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
MR JUSTICE RICHARDS
| FOSTER WHEELER LIMITED
|- and -
|(1) ANDREW JOHN HANLEY
(2) DAVID WARDLAW
(3) GEORGE MIDGLEY
(4) NORMAN FREDERICK HARLEY
(5) TREVOR BRYAN STAPLES
(6) RICHARD GEORGE LARKIN
(7) RICHARD BRUCE CHACKSFIELD
(8) RUSSELL THOMAS FORRESTER EVANS
(the trustees for the time being of the Foster Wheeler Pension Plan ("the Scheme"))
(9) RICHARD WILLIAMS
Andrew Simmonds QC (instructed by Messrs Clifford Chance LLP) for the Respondents (1) to (8)
Andrew Spink QC & Keith Bryant (instructed by Messrs Bond Pearce LLP) for the Respondent (9)
Hearing dates : 17-18 March 2009
Crown Copyright ©
Lady Justice Arden :
a single pension calculated on the basis that all the benefits had fallen due for payment on the date of retirement; or
a single pension payable in full, save that the pension payable by reference to benefits accrued with a NRD of 65 must be discounted for early payment ; or
split pensions, meaning for this purpose (and the purposes of this judgment), separate pensions payable from each NRD respectively.
The judge's approach
Submissions of the parties
Are split pensions a possible solution in this situation?
The criteria for selecting the manner in which benefits should be delivered to members with mixed NRDs who retire between those dates
"57. Accordingly, I think that, where there is a variation in the terms of the Scheme which do not quite achieve compliance with Barber but which potentially achieve it, both common sense and principle suggest that one should give as full effect to the variation as permitted by Barber, and to the extent that it is not permissible, the disadvantaged class should be accorded the same rights as the advantaged class. First of all, that conclusion appears to me sensible in that it gives as much effect as possible to changes which were carefully considered and implemented by the principal employer and the trustees. Secondly, I think that the result is more consistent with the approach of the ECJ in Barber and Coloroll. Thirdly, it would be a little odd if the ECJ's ruling required different results where a change was effected after publication of the Advocate-General's decision in Barber, and where the change was made after publication of the decision of the ECJ itself. Fourthly, it appears to me that if my analysis is correct, there would be less uncertainty for members who have been informed of the amendments. Naturally, in so far as those amendments do not comply with law, the courts must step in, but it seems to me that minimum interference by the courts is desirable, because the expectations and understanding of the members who have been told of the changes should require minimum interference with what they have been told."
Application of the criteria in this case
Lord Justice Lloyd:
"28. Insofar as the relevant rules of national law prohibit them from acting beyond the scope of their powers or in disregard of the provisions of the trust deed, employers and trustees are bound, in order to ensure compliance with the principle of equal treatment, to use all the means available under domestic law, such as recourse to the national courts, especially where, as seems to be the case in this instance, involvement of the national courts is necessary to amend the provisions of the pension scheme or of the trust deed.
29. Furthermore, the Court has consistently held that national courts are bound to provide the legal protection which individuals derive from the direct effect of provisions of the Treaty (see the judgment of 19 June 1990 in R v Secretary of State for Transport ex parte Factortame Ltd and others, C-213/89  ECR I-2433, paragraph 19). They are therefore bound, particularly in the context of Article 119, to the full extent of their discretion under national law, to interpret and apply the relevant domestic provisions in conformity with the requirements of Community law and, where this is not possible, to disapply any incompatible domestic provisions (see the judgment of 4 February 1988 in Murphy and others v Bord Telecom Eireann C-157/86  ECR 673, paragraph 11).
31. Moreover, in paragraphs 18 to 20 of its judgment of 7 February 1991 in Nimz v Freie und Hansestadt Hamburg C-184/89  ECR I-297 the Court held that the national court must set aside any discriminatory provision of national law, without having to request or await its prior removal by collective bargaining or by any other constitutional procedure, and to apply to members of the disadvantaged group the same arrangements as those enjoyed by the other employees, arrangements which, failing correct implementation of Article 119 in national law, remain the only valid point of reference."
"38. Although Article 119 imposes on employers an obligation of result whereby men and women must receive the same pay for the same work, neither that Article nor any other provision of Community law regulates the way in which that obligation is to be implemented by employers or by the trustees of an occupational pension scheme acting within the limits of their powers.
39. It follows that the national court, whose duty it is to ensure ultimate performance of the obligation of result, may, in order to do so, make use of all means available to it under domestic law. … "
"To take any other view would entail undesirable Community interference in a policy area which, in the present state of Community law, belongs to the sphere of competence of the member states, which as the court has repeatedly emphasised, "enjoy a reasonable margin of discretion as regards both the protective measures and the detailed arrangements for their implementation"."
"If a Member is not entitled to a pension under sub-Rule 7(1), he may, with the consent of the Company before Normal Retirement Date and after his 50th birthday, elect to retire from Service and to receive an immediate pension of an annual amount calculated as in sub-Rule 17(3)(a) but then reduced by 0.5% for each complete month in the period from the Member's date of retirement to the Member's 60th birthday (Normal Retirement Date prior to 1st April 1990) or on such other basis as the Actuary certifies to the Trustees as being reasonable or the Trustees may from time to time introduce."
"A Member entitled to a deferred pension under sub-Rules 17(2) or 17 (3) may with the agreement of the Company, at any time before reaching his Normal Retirement Date on account of Disability or after his 50th birthday and before Normal Retirement Date in other circumstances, elect that, instead of that deferred pension, he shall be paid an immediate pension equal in amount to the deferred pension reduced by such amount (if any) as the Trustees shall determine being no more than the Actuary certifies to be reasonable to take into account of the earlier date on which the pension comes into payment."
Mr Justice David Richards: