The High Court has ruled that technology organisation IBM has breached its duties to members of its UK pension schemes in the way in which it implemented a restructuring of their pension arrangements.
The ruling, in the case IBM vs Dagleish, is of particular interest to employers that are, or have been, involved in significant changes to their pension schemes.
The basis of the case is that employers have an implied contractual obligation to their employees of trust and confidence, known as ‘the contractual duty’.
In addition, the courts have confirmed the existence of a related duty, owed to pension scheme members and beneficiaries. This separate pension duty is often known as the ‘duty of good faith’ or the ‘Imperial’ duty, after the case Imperial Group Pension Trust vs Imperial Tobacco, which first referred to it.
IBM restructured its UK occupational pension arrangements, a project known as ‘Project Waltz’. The project included closing defined benefit (DB) pension schemes to future accrual, members agreeing to future pay increases being non-pensionable and a new early retirement policy under which IBM would largely stop consenting to enhanced early retirements.
The High Court held that in considering the scope of the ‘Imperial’ duty in relation to an employer’s exercise of powers under a pension scheme, the correct legal test for breach of that duty was one of ‘irrationality’ and ‘perversity’. If no reasonable employer would have acted in the same way, the duty would be breached.
The judge accepted that the duty was not fiduciary and that the test was a ‘severe’ one. However, he found that IBM acted in breach of its ‘Imperial’ duty and contractual duty in proposing the ‘Project Waltz’ changes and giving members the choice of either agreeing that pay increases would no longer be pensionable or not receiving future pay increases.
Breach of its contractual duty
The judge held that IBM acted in breach of its contractual duty in the manner in which it conducted its consultation with employees regarding the pensions restructure, a consultation which he said had been neither open nor transparent.
He also held that past exercises in relation to IBM’s pension schemes had created reasonable expectations, at least in the short-term, of further DB pensions accrual and of continued rights to enhanced early retirement pensions.
IBM’s past communications to members ‘were not simply statements and communications; they were intended to be, and were, acted upon by the members’ when making previous choices about their pension benefits.
According to the judge, disappointing those expectations ‘was a very serious matter going to the heart’ of the employment relationship. In the light of all the evidence, no reasonable employer in IBM’s position would have adopted the ‘Project Waltz’ proposals in the form that they took.
The judge rejected the suggestion that IBM in the UK did not breach any duties to the extent that it was carrying out the wishes of its ultimate parent in the United States. A group organisation could not ‘shelter behind’ a business case based on the need to meet targets imposed on it by a parent entity, unless there was, in turn, a business case to justify the imposition of those targets.
Mark Grant, partner in CMS Cameron McKenna’s pensions group, said: “This is the first pensions case concerning pension scheme changes where the employer has been held to be in breach of its contractual and ‘Imperial’ duty.
“It is important to stress that the outcome turned very much on the facts before the court. There is no suggestion that earlier cases on the ‘Imperial’ duty were wrongly decided, and the judge reaffirms that ’irrationality’ or ‘perversity’ is required in order to breach it.
“Moreover, it was accepted by all parties that the nature of the pension changes made by ‘Project Waltz’ did not, by itself, breach the ‘Imperial’ duty. The breach was due to the fact that the changes were in conflict with reasonable member expectations, which flowed from the employer’s own past conduct.
“However, the case demonstrates clearly that employers should tread carefully in restructuring pension arrangements and in the way that they communicate them.
“If nothing else, the result may provide some renewed encouragement for members to dispute pension changes made by employers, and for trustees to be more circumspect in considering them when their consent is required.”
A statement from IBM said: “IBM respectfully, but fundamentally, disagrees with the Court’s decision.
”The Court’s opinion acknowledges IBM’s right to make changes in its UK pension [programmes], but we believe the Court applied an incorrect legal standard in invalidating IBM’s exercise of that right.
“IBM fully intends to seek leave to appeal at the appropriate time, and remains committed to providing its employees and retirees compensation that is competitive and in line with market conditions.”