- Can an employee
who holds a unique position within an undertaking have a normal retiring
age
within the meaning of s109(1)(a)(i) of the Employment
Rights Act 1996? That is the single critical question for determination on
this appeal. It is an employer’s appeal from the decision of the Employment
Appeal Tribunal ("EAT") dated 7 February 2001.
- Let me at once set out the two statutory provision in play. Section 109,
so far as material, provides:
"109 Upper
age limit
(1) Section
94 [the right not to be unfairly dismissed] does not apply to the dismissal
of an employee if on or before the effective
date of termination he has attained -
(a) in
a case where -
(i) in
the undertaking in which the employee was employed there was a normal retiring
age for an employee holding the position held
by the employee, and
(ii) the
age was the same whether the employee holding that position was a man or
a woman,
that normal retiring age, and
(b) in
any other case, the age of sixty-five"
- The word "position" in
s109(1)(a)(i) is defined by s235(1) of the Act as follows:
"‘position’,
in relation to an employee, means the following matters taken as a whole
-
(a) his
status as an employee,
(b) the
nature of his work, and
(c) his
terms and conditions of employment,"
- In Age Concern Scotland -v- Hines [1983]
IRLR 477 the Scottish EAT (presided over by Lord McDonald) answered "No" to
the question posed in paragraph 1 above. I need cite only paragraph 12
of their determination:
"For
[Miss Hines] it was argued that she fell into a category of one, being
the only counselling organiser employed by the appellants,
and that there were therefore no employees holding the position which she
held within the meaning of s.64(1)(b). If this were so, then plainly, in
the necessary absence of comparisons with other employees holding the same
position, a normal retiring age could not be established and the statutory
alternative of 60 would apply."
- That case was followed by the London EAT (presided over by Judge Clark)
in Dormers Wells Infant School -v- Gill (16 July 1999, unreported)
in the mistaken belief that a similar approach to that taken in Hines had
subsequently been taken by the Court of Appeal in Patel -v- Nagesan [1995]
ICR 988.
- In the present
case, however, the EAT (presided over by Rimer J) came to the opposite
view.
I should immediately note that in the case of a unique
employee (as for convenience I shall call an employee whose "position" is
not comparable to that of any other employee within the undertaking) the
only candidate for a "normal retiring age" is, assuming his contract
of employment provides for it, his contractual retiring age. Mr Wall, the
respondent to the present appeal, had a contractual retiring age of 70. The
EAT concluded at paragraph 26:
"To
the question ‘was there a normal retiring age for an employee holding the
position held by Mr Wall immediately before his dismissal?’
the answer, in our view, is ‘yes, the only employee holding that position
was Mr Wall himself, and it was 70’."
- Recognising
that they were departing from two earlier decisions and that the point
is one "of some importance" the
EAT themselves gave permission to appeal. Thus it is that the issue is
now before us.
- With
that short introduction let me next briefly set out the factual context
in which this narrow point arises. Few details
are necessary. The respondent, Mr Wall, is the former Director-General
of the appellants, British Compressed Air Society ("BCAS"). He
was employed by BCAS in June 1985 until his dismissal on 26 February 2001.
At the date of his dismissal he was 67 years of age. It has always been
his contention that he had a contractual retiring age of 70, ie an agreement
with BCAS that he would be employed until 17 April 2003. His complaint
of unfair dismissal was presented on 14 May 2001. BCAS disputed it both
on the merits and pursuant to s109 of the 1996 Act. It is their contention
that Mr Wall had no normal retiring age and, having attained the age of
65 by the date of his dismissal was that he was disentitled from claiming
under s94. It was agreed that the Employment Tribunal at a preliminary
hearing would decide two questions:
- Was there a contractual agreement that Mr Wall would retire at the age
of 70, ie on 17 April 2003?
- If there was such an agreement, did this constitute the normal retirement
age, as set out in s109(1)(a) of the Employment Rights Act 1996?
- Before the
Tribunal both parties agreed through counsel that the Tribunal should answer
only
the second of those questions and that it would do so
on the basis of two agreed assumptions: first, that Mr Wall had a contractual
retirement age of 70, and, second, that in his office of Director-General
he held a "unique" position. On that basis the Tribunal concluded
that they were bound by the EAT’s decision in Dormers Wells Infant School
-v- Gill to decide the question in favour of BCAS. Mr Wall then appealed
to the EAT which also proceeded on the basis of the two agreed factual assumptions.
Having, as already indicated, allowed Mr Wall’s appeal, the EAT remitted
his complaint of unfair dismissal to the Employment Tribunal for a hearing
on the merits. There matters stand.
- Against that undisputed factual background I turn now to the law. Again
I can take it comparatively briefly: few of the authorities put before us
seem to me, on analysis, to afford any real assistance on the particular
issue now arising. None save the earlier EAT decisions and, in a different
context, Patel -v- Nagesan, touch on the position of a unique employee.
All the other cases concern what, for convenience, have been called groups
of employees.
- The leading
case on what is meant in this (and similar predecessor) legislation by "normal retiring age" is
the decision of the House of Lords in Waite -v- Government Communications Headquarters [1983] 2 AC 714.
Colonel Waite had obtained employment with the civil service in 1967 under
the Civil Service Code’s relevant terms and conditions which provided for
a retirement age of 60. Although the employers could defer retirement under
these terms and conditions until 65, employees had no right to stay on after
60. Colonel Waite was compulsorily retired in his 61st year and
brought a claim for unfair dismissal. The question was whether his claim
was barred as being brought after his "normal retiring age". Lord
Fraser of Tullybelton gave the only reasoned speech. In the course of it
he described the Court of Appeal’s decision in Nothman -v- Barnet London
Borough County Council [1978] 1 WLR 220 as "authority for the proposition
that the normal retiring age for an employee is to be found by looking exclusively
at the conditions of employment applicable to the group of employees holding
his position" and continued at p723:
"I
have reached the opinion that the Court of Appeal in Nothman [1978] 1 WLR 220 stated the law in terms which were too
rigid and inflexible. If the normal retiring age [is] to be ascertained exclusively
from the relevant contract of employment, even in cases where the vast majority
of employees in the group concerned do not retire at the contractual age,
the result would be to give the word ‘normal’ a highly artificial meaning.
If Parliament had intended that result, it would surely not have used the
word ‘normal’ but would have referred directly to the retirement age specified
as a term of the employment. Moreover, in a case where, unlike Nothman,
the contract provides not for an automatic retiral age but for a minimum
age at which employees can be obliged to retire, it would be even more artificial
to treat the minimum age as fixing the normal age, as the respondents would
have us do, even in a case where the minimum age has become a dead letter
in practice. By no means all contracts of employment specify the age, or
the minimum age, of retirement; indeed outside of large organisations like
the civil service it is probably exceptional for the age of retirement to
be specified. So, if the normal retirement age can be ascertained only from
the terms of the contract, there will be many cases in which there is no
normal retiring age and in which the statutory alternatives of 65 for a man
and 60 for a woman will automatically apply, although some other age may
be well established and recognised in practice. If that were the law it might
operate harshly in the case of women employees over the age of 60, as they
would never be entitled to complain to the industrial tribunal of unfair
dismissal unless they could establish that they were subject to a contractual
retiring age higher than 60.
I therefore reject the view that the contractual retiring
age conclusively fixes the normal retiring age. I accept that where there
is a contractual retiring age, applicable to all, or nearly all, the employees
holding the position which the appellant employee held, there is a presumption
that the contractual retiring age is the normal retiring age for the group.
But it is a presumption which, in my opinion, can be rebutted by evidence
that there is in practice some higher age at which employees holding the
position are regularly retired, and which they have reasonably come to regard
as their normal retiring age. Having regard to the social policy which seems
to underlie the Act - namely the policy of securing fair treatment as regards
compulsory retirement as between different employees holding the same position
- the expression ‘normal retiring age’ conveys the idea of an age at which
employees in the group can reasonably expect to be compelled to retire, unless
there is some special reason in a particular case for a different age to
apply. ‘Normal’ in this context is not a mere synonym for ‘usual’. The word
‘usual’ suggests a purely statistical approach by ascertaining the age at
which the majority of employees actually retire, without regard to whether
some of them may have been retained in office until a higher age for special
reasons - such as a temporary shortage of employees with a particular skill,
or a temporary glut of work, or personal consideration for an employee who
has not sufficient reckonable service to qualify for a full pension. The
proper test is in my view not merely statistical. It is to ascertain what
would be the reasonable expectation or understanding of the employees holding
that position at the relevant time. The contractual retiring age will prima
facie be the normal, but it may be displaced by evidence that it is regularly
departed from in practice. The evidence may show that the contractual retirement
age has been superseded by some definite higher age, and, if so, that will
have become the normal retiring age. Or the evidence may show merely that
the contractual retiring age has been abandoned and that employees retire
at a variety of higher ages. In that case there will be no normal retiring
age and the statutory alternatives of 65 for a man and 60 for a woman will
apply."
I should note that the pensionable age for women was then
60; only later was their position assimilated to that of men so that under
s109(1)(b) there is now a fall-back age of 65 in all cases.
- It is clear
from that passage in Lord Fraser’s speech, first, that where there is a
group of
employees with a contractual retiring age "a presumption" arises
that that is their normal retiring age: "the contractual retiring age
will prima facie be the normal [retiring age]". Secondly, that
that presumption can, however, be rebutted by evidence that in practice employees
in the group are regularly retired at some "higher age" (an expression
used no fewer than four times in the passage) - if at a "definite higher
age" then that will have become the group’s normal retiring age; if
not, the contractual retiring age may simply have to be regarded as abandoned.
Thirdly, that the real question to be asked in all these cases is: "What
would be the reasonable expectation or understanding of the employees" in
the group? At what age could they "reasonably expect to be compelled
to retire"? The fact that some might for special reasons (three such
being instanced) have been kept on in employment beyond their contractual
retirement age would not necessarily affect the reasonable expectation or
understanding of the group.
- As for "the social policy which seems to underlie the Act - namely
the policy of securing fair treatment as regards compulsory retirement as
between different employees holding the same position", this observation
needs to be understood in the context in which it was made. I understand
Lord Fraser there to have been saying essentially this: if in fact employees
in a group, say with a contractual retiring age of 65, are in practice regularly
being retired at "some definite higher age", then the rest of the
group can reasonably expect not to be compelled to retire before that higher
age. Such an approach to the legislation would of course accord with "the
policy of securing fair treatment as regards compulsory retirement as between
different employees holding the same position".
- None of this, however, suggests to my mind that Lord Fraser was contemplating
that employees with a contractual retiring age could ever (unless of course
their contractual terms were varied) come to have a normal retiring age lower than
that of their contractual retiring age. How, one wonders, could it ever be
said of such employees that, at this younger age, they would "reasonably
expect to be compelled to retire"? Nor does it seem to me conceivable
(as at one stage in the argument I understood Mr Blake to submit) that Lord
Fraser contemplated in certain circumstances setting aside the contractual
retiring age in favour of some lower normal retiring age on the basis that
the contractual retiring age itself had been agreed upon "for special
reasons".
- Lord Salmon in Nothman -v- Barnet London Borough Council [1979]
1 WLR 67, 72 said this:
"If
a woman’s conditions of employment provide that her retiring age shall
be 65, I can find no sensible or just excuse nor any
words in paragraph 10(b) [the predecessor legislation] to deprive her of
her rights to compensation should she be unfairly dismissed by her employers
after she reaches the age of 60 but before she attains the age of 65. Before
the unfair dismissal she would probably have planned and arranged her life
on the basis that she would continue in her employment until she retired.
To be unfairly dismissed before that time, say when she was 61 years old,
must surely be a cruel blow. Her plans for her future would be overturned.
The chance of finding fresh employment would be minimal and her pension would
probably be diminished."
- True it is, as Lord Fraser later noted in Waite at p722, that Nothman in
the House of Lords "was decided on another point" (ie not by reference
to the Court of Appeal’s view that the normal retiring age was to be found
by looking exclusively at the terms of contract), and that Lord Salmon alone,
as Lord Fraser commented, "appears to have assumed that it [the contractual
retirement date] was conclusive". To my mind, however, there can be
no gainsaying the good sense and justice of Lord Salmon’s remarks and I do
not understand Lord Fraser to have been suggesting otherwise; his quarrel
was solely with Lord Salmon’s assumption that the contractual retiring age
(rather than perhaps "some definite higher age") would always be
conclusive.
- All of this, of course, as already made plain, was said in the context
of there being a group of employees holding the same position. None of it,
therefore, bears directly on the issue presently before us. Nor, as it happens,
does the next case to which I now come, Patel -v- Nagesan [1995] ICR
988 which, although it did concern a unique employee, decided no more
than that where such an employee does not have a contractual retiring
age, necessarily he (or, as there, she) must fall back onto the statutory
alternative (already by that date 65 for both men and women). In that case,
as will appear, the employee was advantaged by being able to invoke the statutory
alternative: it was higher than the normal retiring age for which her employers
were contending. Sometimes, of course, it is in the employee’s interests
to establish a normal retiring age (whether by reference to a contractual
retiring age or otherwise), other times not: all depends on whether it would
be higher or lower than the alternative statutory age (now 65 for all but,
in earlier times, 60 for women).
- Mrs Nagesan
was employed as a care manager. Her contract specified no retirement age.
She attained
60 years of age, was dismissed shortly afterwards, and
applied to an industrial tribunal claiming unfair dismissal. The employers
disputed the tribunal’s jurisdiction, relying on a letter they had written
to all employees, including Mrs Nagesan, a few months before her dismissal.
The letter had purported to change the terms of employment of all employees
and to introduce a new retiring age of 60 for all of them, although Mrs Nagesan
had refused to accept the new terms and had maintained that no specific retirement
age applied to her. The employers claimed that a new contract of employment
was in force with Mrs Nagesan which did incorporate this new retirement age.
The industrial tribunal rejected this contention, finding that "there
was no retirement age of 60 in Mrs Nagesan’s case", and the EAT dismissed
the employers’ appeal. The leading judgment in the Court of Appeal was given
by McCowan LJ who at p997 said this:
"All
that the evidence amounts to, in my judgment, is that the Patels were attempting
to impose on [Mrs Nagesan] a contract
with a term that she retire at 60, an imposition which she resisted.
If one tests it with Lord Fraser’s words in mind, by asking
what the employee’s reasonable expectation at the time was, it clearly was
not that she would have to retire at 60. [Counsel for Mrs Nagesan] puts it
in this way: he says you cannot talk of a group expectation when her position
is unique. A concept of a normal retiring age simply does not apply. In this
context, I would read the words of the appeal tribunal in the final paragraph
of their judgment:
‘The
contention on behalf of the employer was that, because all the other employees
had been persuaded to accept 60 as their retiring
age for the future, that became the "normal" age for retirement
and the employee’s case therefore failed. We accept the contention of the
employee that, as the ‘person in charge’ with responsibilities which statute
imposes upon an individual holding that office, she was in a unique position.
We consider that there was ample evidence upon which the tribunal could find
that there was no retirement age specified and that accordingly the statutory
retirement age of 65 now applies, there being no other "normal" retirement
age. It is noteworthy that at least one other employee had been employed
when already over the age of 60.’"
- Age Concern Scotland -v- Hines had
been cited to the Court of Appeal and true it is that McCowan LJ there
recorded without adverse comment counsel’s
submission that "you cannot talk of a group expectation when her position
is unique. A concept of a normal retiring age simply does not apply".
As Mr Blake recognises, however, Patel -v- Nagesan cannot be regarded
as having decided the point presently before us and Harvey on Industrial
Relations and Employment Law goes too far in stating at paragraph D1/63
that it supports the approach adopted in Hines:
"[I]t
is not possible to contend that there is a class of one and that the dismissed
employee’s contractual age constitutes the
normal retiring age. The proper analysis is that since there are no comparators
there is no normal retiring age at all and it is necessary to fall back on
pensionable age. There are no other employees in the same position as the
applicant. This approach is also supported by the decision of the Court of
Appeal in Patel -v- Nagesan …"
It was this passage which appears to have misled the EAT
in Dormers Wells Infant School -v- Gill: certainly that decision contains
no reasoning of its own and simply applies Hines.
- In short, the EAT in the present case were correct to say, as they did,
of the Nagesan case:
"We
accept that the Court of Appeal’s decision proceeded on the basis that
Mrs Nagesan was in a unique position, in respect of which
no comparators were available, for the purpose of identifying a normal retiring
age. But she did not have a contract which provided for a specific retiring
age, and so the court did not have to decide, nor did it decide, the point
arising in the present case: namely, is the ‘normal retiring age’ of an employee
who has a unique position capable of being the retiring age provided for
in his contract of employment."
- Although, in
his admirably clear and careful judgment, Rimer J below discussed a number
of other authorities
too, I for my part think it unnecessary to
do so. They really do not help. Rather it is necessary at last to confront
the central question arising: does the word "normal" in s109(1)(a)(i)
necessarily require the existence of one or more comparators? If, of course,
it does, then any unique employee will never be able to rely upon his contractual
retiring age to establish a "normal retiring age". As to this,
Rimer J pointed out the unfairness of such a conclusion:
"If,
for example, Mr Wall had been one of a group of two employees, both in
a like position, and both with a contractual retirement
age of 70, it seem to us clear that he would be entitled to bring his unfair
dismissal claim. But BCAS’s proposition is that the legislation positively
discriminates against Mr Wall from being able to do so because he is in a
class of one rather than two."
- The discrimination would, of course, be in favour of the unique
employee had a contractual retiring age of less than 65, say 60: he
would then be able to assert that, despite having no reasonable expectation
or understanding of being able to work beyond 60 he was nevertheless entitled
to claim for unfair dismissal if in the event his contract was terminated
at any time before he was 65.
- In common with
the EAT below, I can see no good reason, still less any sound policy consideration,
for reaching such a conclusion. Does the word "normal" in
the legislation nevertheless compel it? In my judgment it does not: one can
as well ask of a unique employee as of a group of employees what, by reference
to their contractual terms, is the age at which they can reasonably expect
to be compelled to retire, the ultimate touchstone for determining their
normal retiring age as Lord Fraser explained in Waite. If one asks:
whose "normal retiring age" has to be decided for the purpose of
applying s109(1)(a)(i), the answer clearly is: an employee holding the position
held by the employee". Plainly the dismissed employee himself held that
position.
- Assume that only two employees hold the same position within an undertaking,
each with a contractual retiring age of 70. The first is dismissed at the
age of 69 whilst the other, still aged only 66 remains at work. It could
hardly be suggested that the one who is dismissed has no normal retiring
age (presumed to be the contractual retiring age of 70) although, of course,
no one would yet have retired at 70. Assume then that the second employee
were himself later dismissed, say at the age of 68. Surely he too would have
had a normal retiring age of 70; it cannot matter that no-one in the event
ever came to be employed that long. Why, therefore, should it matter that
there was only one such employee? For him the expectation would be that he
would remain in his employment until his contractual retirement age. That
for him would represent the norm. It is, surely, normal not to be compulsorily
retired until one has reached one’s contractual retirement age, ie the age
stipulated for automatic retiral, alternatively the minimum age at which
one can be obliged to retire.
- It follows in my judgment that in cases where an employee has a contractual
retiring age, there is no need for comparisons to be made with other employees
holding the same position before a normal retiring age can be established. Age
Concern Scotland -v- Hines and, in turn, Dormers Wells Infant School
-v- Gill were, I conclude, wrongly decided. The EAT below were right
not to have followed them. I would dismiss this appeal.
- By way of footnote I add just this. In the course of argument - in response
to a question from the court as to why it greatly matters whether a claim
lies here for unfair dismissal given that on the facts assumed Mr Wall appears
to have an unanswerable common law claim for wrongful dismissal - Mr Blake
appeared to suggest that the employment contract was in fact subject to a
three months’ notice term on either side. If indeed this is so - and in the
absence of the contractual documents we have been unable to check this -
then I cannot see how in any meaningful sense the contractual retirement
age here could be said to be 70: certainly Mr Wall could have had no reasonable
expectation of not being compulsorily retired before that age. It may be,
given that matters hitherto have proceeded merely on the assumption that
Mr Wall had a contractual retirement age of 70, that that question (the first
of the two questions originally to have been the subject of preliminary decision
by the Employment Tribunal - see paragraph 8 above) will now fall for determination
as part of the merits hearing still to be held. Certainly it cannot affect
the outcome of this appeal.
Lord Justice Scott Baker:
- I have had the advantage of reading in draft the judgments of Simon Brown
L.J and Evans Lombe J. I agree with Simon Brown L.J that the appeal should
be dismissed and I agree with his reasons for reaching that conclusion. For
convenience I use the same abbreviations and expressions.
- If a unique employee cannot have a normal retiring age within the meaning
of s.109(1)(a)(i) he is immediately placed in a different situation from
other employees within the same organisation. In particular, his contractual
retiring age will never prevail against the fall back age of 65 in s.109(1)(b).
This may work to his advantage or disadvantage. It is to be noted, however,
that a great many people these days retire before they reach the age of 65.
Suppose that instead of 70 Mr Wall’s contractual retiring age had been 60
but he continued in employment thereafter until unfairly dismissed aged 61.
Could it really be said that because he was under 65 the s.109 exemption
did not apply?
- As Simon Brown L.J points out, the only candidate a unique employee has
for a normal retiring age, assuming his contract of employment provides for
it, is his contractual retiring age. I cannot accept that the true meaning
of s.109(1) is that a unique employee cannot have a normal retiring age despite
what is agreed in his contract of employment and that his retiring age is
deemed to be 65.
- In the present case the focus is on the normal retiring age for a person
holding Mr Wall’s position. I am unpersuaded that it is necessary to look
for comparators where there are none. The question is what is his normal
retiring age. Lord Fraser of Tullybelton in Waite -v- Government Communications
Headquarters [1983] 2AC 714, 723 thought the court of appeal had gone
too far in Nothman in holding that normal retiring age for an employee
would be found exclusively in the terms of employment, but nevertheless concluded
that:
"…
where there is a contractual retiring age, applicable to all, or nearly
all, the employees holding the position which the appellant
employees held, there is a presumption that the contractual retiring age
is the normal retiring age for the group."
But, like all presumptions, it could be rebutted by evidence.
- Once the critical significance of the terms of employment is accepted,
it seems to me clear that a unique employee is as capable of having a normal
retiring age as one of a group. It is not necessary to look elsewhere for
a comparator. The word normal is really introduced into the subsection
to ensure equality of treatment for employees within the same group.
- The fact that Mr Wall’s position was unique does not seem to me to detract
in any way from Lord Fraser’s approach. Suppose there was a notice displayed
by the appellant company saying the normal retiring age for all employees
of the company is 65 except for the Director–General who retires at 70 and
that reflected the terms of their employment. I cannot believe that the reasonable
bystander, if asked in these circumstances what Mr Wall’s normal retirement
age was would give any answer other than 70.
- The fact that an employee in the shoes of Mr Wall may have an unassailable
claim for damages for breach of contract if dismissed before his contractual
retirement age is not, in my judgment, a reason for treating him differently
from one of a group of employees in a similar situation. In respectful disagreement
with Evans Lombe J I cannot believe that the legislature had this in mind
when enacting s.109. Unfair dismissal and wrongful dismissal are not one
and the same thing.
- The conclusion reached by the EAT is the one that I myself would have reached
in the absence of authority. Does authority prevent such a conclusion? As
Simon Brown L.J has pointed out, the cases have mostly been concerned with
groups of employees. Whilst it is true that Patel -v- Nageson [1995]
1CR 988 was concerned with a unique employee, she had no contractual retiring
age with the result that the fall back age of 65 applied. That case is therefore
plainly distinguishable.
- There is no authority that prevents or dissuades me from concluding that
the EAT was correct. An employee who holds a unique position within an undertaking
can have a normal retiring age within the meaning of s.109(1)(a)(i). Such
a conclusion seems to me entirely in keeping with the purpose of the legislation.
Mr Justice Evans-Lombe:
- In this appeal I have had the advantage of reading in draft the judgments
of my Lords Lord Justice Simon Brown and Lord Justice Scott Baker dismissing
the appeal. I have the misfortune to disagree with them, but since Lord Justice
Scott Baker agrees that the appeal must be dismissed and that in consequence
that will be the court’s order I will express my dissent briefly. I will
adopt the abbreviations used by Lord Justice Simon Brown and his description
of the background facts. As he points out the short question in the appeal
is whether an employee who holds a unique position within an undertaking
has a normal retiring age within the meaning of s109(1)(a)(i) of the Employment
Rights Act 1996.
- The section so far as material provides:-
"109 Upper
Age Limit
(1) Section
94 [the right not to be unfairly dismissed] does not apply to the dismissal
of an employee if on or before the effective
date of termination he has attained –
(a) In
a case where
(i) In
the undertaking in which the employee was employed there was a normal retiring
age for an employee holding the position held
by the employee, and
(ii) The
age was the same whether the employee holding that position was a man or
a woman,
that normal retiring age, and
(b) In
any other case, the age of 65."
- In summary,
my conclusion is, that because of the presence of the word "normal" in
s109(1)(a)(i) that sub-section does not have the effect of conferring on
such a unique employee as Mr Wall, who has the benefit of an employment contract
containing provisions allowing him to delay his retirement after the age
of 65, the right to proceed to recover compensation in the Employment Tribunal
in respect of his unlawful dismissal on a date after he has achieved the
age of 65 but before 70. As my Lord has pointed out, an employee having the
benefit of such a contractual retirement date, (as we are invited to assume
that Mr Wall has), will have, in those circumstances, an unanswerable claim
for damages for breach of contract. It is for this reason that I take the
view that when the legislature enacted s109(1) of the 1996 Act it did not
have in view such "unique" employees.
- It seems to
me that this conclusion is consistent with a passage in the extract from
the speech
of Lord Fraser of Tullybelton quoted by my Lord starting
at page 723 where he defines "the social policy which seems to underlie
the Act" as that "of securing fair treatment as regards compulsorily
retirement as between different employees holding the same position… ." To
which I would add "that employees being employed in circumstances where
there is a pattern of retirement age amongst their peers should be entitled
to assume that the same pattern applied to them".
- In my judgment
a "unique" employee cannot have a "normal
retiring age" within sub-section (i) because:-
- The word "normal" requires the presence of a norm. The dictionary
definition of the word "normal" is "constituting, conforming
to, not deviating from the common type or standard" and that of "norm" is "a
standard, model, pattern type" see OED 2nd Ed.
- To have a
norm there must be at least one and probably more models or patterns
to comprise
it and with which the example to be described as "normal" must
be compared and found to conform with.
- The unique
contractual right of an employee to retire on a certain date cannot,
by itself, create
such a norm. I do not accept that the presence
of another employee in the same "position" [see the definition
of that word in section 235(1) of the 1996 Act] would necessarily create
such a norm without more. I do accept, in the present case, that were it
possible to show that predecessors of Mr Wall, being previous directors
general enjoyed the benefit of the same terms and conditions of employment
as Mr Wall, such might provide the necessary models or comparators to create
the necessary norm. However in the absence of such comparators Mr Wall
cannot have a "normal retiring age" in respect of his employment
by BCAS because he can only retire once. Mr Wall’s contractual retiring
age of 70 is his retiring age not his normal retiring age.
- In my view if you asked a reasonable bystander, knowing the contents
of Mr Wall’s presumed employment contract, what the normal retirement age
of someone in the position of Mr Wall was, he would probably answer 65
because that is the State Pensionable age and the age at which most people
retire. He would describe Mr Wall’s position by reason of his contractual
retirement age of 70 as exceptional.
- With great
respect, the fact that it may be "normal" not to
compulsorily retire an employee who has not reached his contractual retirement
age does not mean that that retirement age was his "normal retiring
age." It means that it is not normal to act in breach of contract.
- To bring
a unique employee with a specially long retirement date within the words "normal retiring age" contained in the sub-section
requires that section to be read as if the word "normal" did
not appear or gives that word a strained meaning. As Lord Salmon said in Nothman’s case, passim at
page 72B "it is well settled that in the absence of clear authority,
it is wrong to read into a statute words which are not there." I would
add "and to omit words which are there." Such necessity would
only arise if it were possible to discern in s109(1), taken in the context
of the Act as a whole, a statutory purpose which requires such treatment.
Such treatment is plainly not within the statutory purpose found by Lord
Fraser. Given the ability of the unique employee to obtain relief at common
law, I am not able to discern any other statutory purpose which requires
such treatment. With respect the policy suggested by Rimer J as the policy
of s109(1), is insufficient for the purpose because it begs the question
whether the employee concerned has a normal retiring age.
- Apart from the decision of the EAT in this case and the decisions of that
court in Age Concern Scotland -v- Hines [1983] IRLR p 477 and Dormers
Wells Infants School -v- Gill (unreported 16th July 1999)
which took a contrary view, there are no reported cases, and in particular,
none of the higher courts, where the point has been directly decided. As
one would expect all the cases cited to us apart from those two and the decision
of the Court of Appeal in Patel -v- Nagesan [1995] ICR p988
concern the retiring date of groups of employees in a similar position to
which the sub-section unquestionably applies. The woman spoken of in the
quoted extract from Lord Salmon’s speech in Nothman -v- Barnet London
Borough Council [1979] 1WLR p67 at page 72 had with her fellow
teachers, a contractual right to be retired no earlier than 65 save upon
just cause. It was, as a result her reasonable anticipation that she would
not be retired before reaching age 65.
- I accept that though Patel -v- Nagesan did
concern a unique employee who was held, for that reason, not to have a "normal retiring age",
it is not binding authority upon which I am entitled to rely, because the
facts were substantially different from those in the present case, in particular,
Mrs Nagesan was held not to have a contractual retiring date. Nonetheless
it does seem to me that the passage in the judgment at page 997 where Lord
Justice McCowan refers, without criticism, to Mrs Nagesan’s counsel’s submission
that "you cannot talk of a group expectation when her [Mrs Nagesan’s]
position is unique. A concept of a normal retiring age simply does not apply" –
is indicative of the approach of Lord Justice McCowan to the problem with
which he had to deal. Thus, it seems to me, the editors of Harvey on Industrial
Relations and Employment Law were entitled to say that the approach of
the court in the Patel case was similar to that in the passage in
paragraph D1/63 of that book, which reads:-
"It
is not possible to contend that there is a class of one and that the dismissed
employee’s contractual age constitutes the
normal retiring age. The proper analysis is that since there are no comparators
there is no normal retiring age at all and it is necessary to fall back on
pensionable age. There are no other employees in the same position as the
applicant."
- I would allow the appeal.