The IBM issues have now given rise to half a dozen different judgments (including the earlier decisions in IBM v Metcalfe and the later ones in IBM v Dalgleish and last month it was announced that there were more to come, as permission to appeal had been granted. Given the liabilities at issue and the complexities of the case and decisions, that is not surprising.
The case has taken on a slightly Dickensian air, with seven pensions QCs and many other leading barristers and solicitors in the pensions arena, some very long judgments and many additional issues dealt with in later documents. Following the Dalgleish judgment and its remedies decision, there have been a few further decisions which have elicited a little more detail:
- Mr Justice Warren has confirmed his position that, in particular in relation to the early retirement policy, once a period had passed for reasonable expectations to come to an end, IBM was free to change this policy, as the decision to change it in itself was not a breach of the duty of trust and confidence, just the timing of that change, given earlier statements;
- In a moment almost approaching comedy, the end of the remedies judgment noted that Andrew Simmonds QC, who had appeared for IBM, had pointed out that the two IBM claimants, IBM United Kingdom Holdings Limited and IBM United Kingdom Limited were being treated as the same entity. However, the employees' contracts (and therefore the party with which there was an employment relationship which could be breached) was the second of those parties, and many of the actions of which members complained and which were held to be in breach were carried out by the first of those parties. This was particularly telling because the first IBM v Metcalfe decision particularly distinguished the different IBM companies and, in fact, includes some very helpful explanation of the need for decisions to be made by the appropriate company (in that case, the principal employer of the scheme). Warren J.'s further decision on this point assesses that, in fact, in this case, had the two companies not been conflated, it would not have affected his decision.
The further decisions do add some clarity and detail to the IBM v Dalgleish decision. However, the appeal will provide some valuable authority on a number of issues, including the so-called Imperialduty of good faith, and possibly further analysis on the amendment powers of the employer.