2nd reaction

a) The Determination covers the ground in a sparse and shallow way, which is surprise in view of how long it took to emerge. The Ombudsman avoids events prior to 1995 because he thinks recollections from then must be unreliable. The Ombudsman chooses not to look at what he can label as "the recruitment and employment practices of IBM either nationally or globally". The Ombudsman chooses not to involve the people who were previously trustees or IBM executives responsible for the trust. The Ombudsman chooses not to look at the readily available background which contrasts the outcomes for IBM scheme members with the outcomes for members of other schemes. The reasoning one might expect to find in between the chunks of quotations and the conclusions is not there.

b) We know something of the reasons for the quality of the determination. We know from the Ombudsman's responses to MPs of the losses of staff, the computer problem, and of the overload which threatened his holidays when he took on this particular investigation personally, in addition to his overseeing duties. While we can empathise, we don't think this should have led to the complaints being not upheld because they were under-investigated, rather than upheld, or not upheld because of facts and reasons shown to the public in the report.

c) It is also known that complaints upheld are likely to be challenged in the High Courts, using the large financial resources of the trust fund or the company, whereas the complainants are less like to be able to challenge. It is for the reader of the determination to judge whether this had a bearing on the determination, but it should not have.

d) One section will send a chill through all those who want pension promises upheld. One complaint says "that the company's exercise of its control over the mechanism for delivering pensions (the Trust) did not honour the bargain (or arrangement or contract or implicit contract or deal or whatever term is appropriate) established when I exchanged my skills for a prospective pension."

The Ombudsman says "I have not gone as far as the complainant would wish in exploring whether his former employer has honoured the bargain he says was struck when he exchanged his skills for a prospective pension or with whether IBM has continued to compare favourably with other employers. This is because I see no legally enforceable promise in either context."

Here the Ombudsman says that he does not need to investigate the certainty of the bargain or the size of the gap between the "leading companies" aim and the pension delivered because irrespective of the gap and its certainty and the reasons for nondelivery there was no possibility of legal redress for the complainant. How is this different from saying "a company can do or say whatever it likes when it wants to recruit, retain or retire employees and then do something different subsequently"?

e) Chief District Judge G. Patrick Murphy of the Southern District of Illinois, on 31 July 2003, decided that the modifications to IBM US pension plans made in the mid-1990s resulted in illegal plans.

Judge Murphy made this comment on the IBM Corp actions: "There has not been a change in the law. All that has changed is IBM's clever, but ineffectual, response to law that it finds too restrictive for its business model".

Whether there was any connection in intent between what happened in the US and what happened in the UK must be judged on actions. However, that there was a connection in culture is not in doubt. IBM Corporation exercised control over IBM UK through "Corporate Instructions" and two of the senior IBM Corporation executives of the time sat on the IBM UK Pensions Trust board.

Ignoring this topic may have been what the Ombudsman was defending when he wrote "not appropriate for me to conduct some kind of Commission of Inquiry into the recruitment and employment practices of IBM either nationally or globally". However, back in year 2000, the complainants had specifically drawn attention to the roles of Serkes and Cadigan on the UK Trust, had specifically addressed the issue of IBM UK's "bulk purchase" of employees (mainly to go on the money purchase scheme), and had specifically raised the concepts of "fair play" and "balance" as they are applied in the UK.