The Chartered Institute of Payroll Professionals ……………………………………………………………Policy News Journal
The Claimant was a Regional Manager who became aware that a HR Manager had issued an email which attempted to interfere in and subvert an important management consultation exercise. Despite being aware of this email the Claimant did nothing to get it withdrawn or to remedy the situation. In a disciplinary hearing it was decided that his inaction demonstrated gross negligence which was "tantamount to Gross Misconduct"• and he was therefore dismissed. He sued for breach of contract. The High Court held that even though the inaction of the Claimant was not deliberate his negligence was so serious that it resulted in a "loss of trust and confidence"• sufficient to justify dismissal. The Court of Appeal agreed that any decision on what amounted to gross misconduct turned on the specific facts of the case. Even though courts should not easily find that a mere failure to act amounted to gross misconduct, on the facts of this case the senior position the Claimant had in the Company justified the dismissal.
With thanks to Daniel Barnett’s employment law bulletin which provided these details.
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Partner’s claim to pension without nomination form successful 10 February 2017
Denise Brewster stood to lose out on her partner’s pension because a nomination form had not been signed, however the Supreme Court has ruled in her favour .
Responding to the Supreme Court ruling concerning Denise Brewster’s successful claim to her partner’s pension, UNISON general secretary Dave Prentis said:
“Today’s judgement is good news for anyone like Denise Brewster who stood to lose out on their partner’s pension, simply because a form hadn’t been signed.
It means the Northern Ireland local government pension scheme and others covering people working in education, the NHS and the civil service will now have to look again at their rules.
The last thing a recently bereaved person needs is to have to fight for a pension that’s rightfully theirs. This thankfully will no longer be necessary.”
Background This case concerns a requirement in the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2009 (the “2009 Regulations”) that unmarried co-habiting partners be nominated by their pension scheme member partner in order to be eligible for a survivor's pension. The survivor must also show that he or she has been a cohabitant for two years before the date on which the member sent the nomination and has been in that position for two years before the date of death. There is no similar nomination requirement for married or civil partner survivors. The Department of the Environment of Northern Ireland (DENI) included a nomination requirement in the 2009 Regulations in order to ensure “parity” with other local government pension schemes in Scotland and England and Wales, which at the time had similar requirements. The appellant, Denise Brewster, lived with her partner for around ten years before December 2009. On Christmas Eve that year, they became engaged. Mr McMullan died two days later. At the time of his death, Mr McMullan was employed by Translink, a public transport operator, for whom he had worked for approximately 15 years. Throughout that time he had been a member of, and had paid into, the Local Government Pension Scheme (the scheme). Ms Brewster believes that Mr McMullan had completed a form in which he nominated her to be eligible for a survivor’s pension, but the Northern Ireland Local Government Officers’ Superannuation Committee (NILGOSC), which administers the scheme, says it did not receive any form. Accordingly, NILGOSC refused to pay her a survivor’s pension. Ms Brewster applied for a judicial review of this decision. The High Court held that the requirement of nomination of a cohabiting partner in the 2009 Regulations was incompatible with article 14 of the European Convention on Human Rights (which prohibits discrimination) read together with article 1 protocol 1 (peaceful enjoyment of possessions) (“A1P1”). The Court of Appeal allowed the respondents’ appeal, finding that the nomination requirement was neither unjustified nor disproportionate. In the meantime, prompted by the judgment of the High Court, the equivalent regulations in England and Wales and in Scotland were amended to remove the nomination requirement in those schemes. When the appellant became aware of these changes, she applied to the Court of Appeal for her appeal to be re-opened. Her application was refused and she then appealed to the Supreme Court.
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