It takes a neutral role in these proceedings (although it has adduced factual evidence that it considers to be of assistance to the Court). The Third Defendant ("the Trustee") is (and has at all material times been) the sole corporate trustee of the Plans. They are respectively members of the Main Plan and the I Plan.ĥ. The First and Second Defendants, Mr Dalgleish and Ms Harrison, have been selected to be representative beneficiaries ("RBs") for the purposes of the Project Waltz Proceedings. I use "IBM" as a catch-all to include the Group as a whole.Ĥ. IBM Group's headquarters is in Armonk and is known as "CHQ". I shall refer to them together as "IBM UK" in order to distinguish them from the US parent IBM Corporation. The Second Claimant ("IBM UKL") also participates in the Plans and is the employer of most of the active members. The First Claimant ("Holdings") is the principal employer for the purposes of the Plans (which means that certain important powers and discretions under the relevant rules are vested in it). In these proceedings, the changes are challenged on behalf of the members of the Plans.ģ. These changes were announced following a project known internally as "Project Waltz".Ģ. This is an application for declaratory relief concerning certain proposed changes first announced by the First and Second Claimants in July 2009, and announced in their final form in October 2009, in relation to two final salary pension plans that operated for the benefit of their UK workforce, namely the IBM Pension Plan ("the Main Plan") and the IBM IT Solutions Pension Scheme ("the I Plan", together "the Plans").
The new early retirement policy therefore has no effect on such retirements. However, in earlier litigation (see IBM United Kingdom Pensions Trust Ltd v IBM United Kingdom Holdings Ltd PLR 469 - "the Rectification Action"), I held that the Rules of the C Plan were to be rectified so as to remove the requirement for Holdings' consent for C Plan early retirements from active status at or after age 60. Rather, it is an objective assessment of where the range of reasonable perceptions reaches its limits. But this is not to bring in, by the back door, the test of fairness rejected in Imperial and cases following it since there is no question of choosing one person's (the employer's) idea of fairness rather than another person's (the employee's) idea of fairness. To that extent, reasonableness does come into the picture. In other words, if expectations have been engendered by an employer, that may have been done in such a way that to disappoint those expectations would, absent some special change in circumstances, involve the employer acting in a way that no reasonable employer would act in which case, irrationality or perversity, as those concepts are to be understood in this context, is established. Moreover, given that Burton J in Clark v Nomura was equating the test which he described as irrationality or perversity with the test applied in granting judicial review, as he put it "that no reasonable employer would have exercised his discretion in this way", it seems to me that breach of expectations is, at root, an aspect of irrationality or perversity.
0 kommentar(er)
