England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Friday, 15th June 2001

Friday, 15th June 2001

1. LORD JUSTICE PETER GIBSON:The applicant, Michael Tourell, seeks permission to appeal out of time from two orders made by the Employment Appeal Tribunal on 29th November 2000. He also seeks permission to appeal from two further orders made by the EAT on 28th February 2001, for which he is in time.
2. The procedural history is a little complex. Mr. Tourell, who was born on 10th March 1938, was first employed as a civil servant in 1963 in the Air Ministry. The normal retirement age for mobile grades, into which category he fell, was then 65. In the 1970s he was employed by the Property Services Agency, whose estate functions were transferred in 1990 to Property Holdings. Its functions were transferred in 1996 to an executive agency of the Cabinet Office, Property Advisers to the Civil Estate ("PACE"). He was a senior professional technical officer. Mr. Tourell's employment followed those transfers.
3. In 1988 changes in the applicable rules provided for a reduction in the normal retirement age from 65 to 60. On 21st August 1997 Mr. Tourell wrote to the Director of Personnel of PACE to say that he was looking to retire on 31st May 1988. The Director replied on 27th August 1988 that the normal retiring age for staff in his grade was 60, but exceptionally he was prepared to agree to Mr. Tourell staying until 31st May 1988. Mr. Tourell was not told that he had a right of appeal from that decision.
4. Mr. Tourell in further correspondence tried to have his retirement postponed, but he was made to retire on 31st May 1988. He then exercised a right of appeal under PACE's internal rules but that was rejected. Mr. Tourell then applied to an Employment Tribunal on 10th June 1988, complaining of unfair dismissal, breach of contract and sex discrimination. PACE objected to the unfair dismissal claim, saying that Mr. Tourell was over the normal retirement age and that the tribunal had no jurisdiction to hear the unfair dismissal claim. Mr. Tourell's case was that there was no normal retirement age applicable to him.
5. By a decision promulgated on 18th January 1999 with summary reasons, extended reasons being given on 15th March 1999, the tribunal, sitting at Birmingham, held that, in the undertaking in which Mr. Tourell was employed, there was a normal retirement age for an employee holding the position held by Mr. Tourell, and that age was 60. Mr. Tourell applied for a review of that decision. The tribunal acceded to that request. It heard further extensive evidence, in the light of which it reviewed its decision. In a detailed decision promulgated on 1st December 1999, it held that the terms and conditions of service of Mr. Tourell were those for civil servants within Property Holdings on 31st March 1996, that is to say, for those within the Department of the Environment. It confirmed the earlier decision.
6. The tribunal, in February 2000, heard the complaints of breach of contract and sex discrimination. By a decision promulgated on 17th April 2000 it held that PACE had acted in breach of contract in failing to provide Mr. Tourell with, or to notify him of, a right of appeal when telling him that he could remain in employment only until 31st May 1998. Other claims for breach of contract were dismissed and so was his sex discrimination claim. The tribunal directed a further hearing to determine the remedy for the breach of contract found.
7. Mr. Tourell, on 20th April 1999, appealed from the tribunal's decision of 18th January 1999. On 24th May 2000 he appealed from the tribunal's decision of 17th April 2000 so far as he had not succeeded. The appeals came before the EAT at a preliminary hearing on 29th November, when the EAT dismissed the appeals. The dismissals are the first two orders against which Mr. Tourell seeks to appeal.
8. The EAT directed that any application for permission to appeal should be made direct to this court within 14 days of the date the judgment was sent to the parties. It was sent on 1st February 2001, but Mr. Tourell's appellant's notice was not filed until 2nd April 2001. He is thus more than six weeks out of time. He seeks to excuse his delay by saying that he had, on 11th December, requested a review by the EAT and that it was not until 20th March that the EAT refused that review, and that the remedies hearing had still to be arranged.
9. Given the clear terms of the EAT's orders as to the period for applying for leave, I am not satisfied that Mr. Tourell has given an adequate excuse for his delay. But this court always takes into account, on applications for permission to appeal out of time, whether there is substance in the proposed appeal.
10. The other orders against which Mr. Tourell seeks permission to appeal are the EAT's orders of 20th March 2001 refusing a review on the grounds that the applications had no reasonable prospect of success. Mr. Tourell, appearing in person before me today, wishes to appeal on the grounds set out in his letter of 11th December 2000 to the EAT requesting a review. In that letter he asked for a review on the grounds that the EAT's decision was wrongly made as a result of an error on the part of tribunal staff and that the interests of justice require such a review. No error of the tribunal staff was specified. Complained about are alleged errors by the tribunal in dealing with Mr. Tourell's case and in applying decisions of the House of Lords and this court. That may provide a basis for an appeal if they are errors of law and if they can be established. They do not provide a basis for a review.
11. Mr. Tourell went on to say that in all the decisions reference is made to a "short service concession" for staff with less than 20 years' reckonable service, and that this ceased to be a Civil Service rule from the early 1990s and was totally contrary to the revised rules. He relied on the Civil Service Code. The Code issued in 1993 set out regulations and instructions to departments and agencies regarding the terms and conditions of service of civil servants and, where departments and agencies are given discretion to determine terms and conditions, the principles which must be adhered to. It included, in paragraph 7.3.1, a reference to the normal retirement age as being normally the minimum retiring age, but that was said to depend on the policy of the department. By paragraph 7.3.3 it was stated that staff could be retired by the department on reaching normal retirement age. Paragraph 7.3.5 required departments and agencies to inform staff of the departmental retirement age and of departmental policy and how it applied to them. Paragraph 7.3.6 required them to be consistent in their application of their age retirement policy. It is therefore apparent that it is for each department or agency to adopt its own retirement policy. By an undated document headed "PACE Terms and Conditions of Service for Established Appointments" it is stated that, subject to the provisions of that document, full details of the conditions of service currently applicable to staff of PACE are in the DOE staff handbook which PACE has adopted for its own use and in the Civil Service Management Code. It is stated under "Age of Retirement":

"21. The minimum age of retirement for PACE staff is 60, although certain groups like administrative officers/assistants and some specialist grades, and those with less that 20 years service, are currently able to stay beyond 60. Full details are set out in Chapter 23 of the Staff Handbook."

12. Chapter 23 of the Staff Handbook contains, in para. 23.2.1:

"The rules governing age retirement in the Civil Service are ...

c. except in special circumstances mentioned below, staff can be retired by their department on reaching the normal retirement age - ie the age at which staff in that grade (or specialism within a grade) in the same department normally retire.

...

23.2.2 In this Department and its Agencies, the normal age of retirement is 60, subject only to the short service concession (paragraph 23.2.3

below) ..."

13. There is then a mention of 65 being the normal age of retirement for certain specified grades, but Mr. Tourell is not within any of those grades, nor does he come within the conditions for the short service concession for staff in grades up to and including grade 6 with less than 20 years' reckonable service. There are similar statements in the Staff Handbook Pocket Guide issued on 25th September 1996 which expressly states that it is to apply to PACE staff.
14. I hope I have read enough to demonstrate that Mr. Tourell is quite wrong to say that short service concessions are not in the relevant rules.
15. The nub of Mr. Tourell's argument is that the tribunals and the EAT have not followed the principles set out by the House of Lords in Waite v. Government Communications Headquarters [1983] 2 AC 714 or by this court in Barclays Bank Plc v. O'Brien [1994] I.C.R. 865. In the latter case, in a judgment with which Glidewell L.J. and Henry L.J. agreed, I set out at page 871 the propositions which could be distilled from the numerous authorities including Waite. The tribunal, in its extended reasons promulgated on 15th March 1999, referred to both Waite and O'Brien, finding the propositions to which I have referred of particular assistance.
16. Nevertheless, Mr. Tourell says that the tribunal erred. In O'Brien proposition 6 was:

"That some employees could reasonably expect to retire at different ages for special reasons does not entail that they and their group do not have a normal retiring age: see Waite [1983] I.C.R. 653, 662."

17. At page 873 I referred to what Lord Fraser said in Waite in a passage to which I made reference in that proposition, and I said:

"When an exception limited in time is made for a relatively small category of messengers falling within particular age limits in response to representations made on their behalf on grounds of hardship, it does not follow that the exception cannot be said to be for a special reason within Lord Fraser's principle, such that the norm is thereby destroyed."

18. That special reason was expressly related to the particular facts of O'Brien. Mr. Tourell has misunderstood that, taking it to lay down some general proposition that only in the circumstances there described will there be an exception for a special reason. I said nothing of the sort. In my judgment, there has been no failure to follow Waite or O'Brien. The criticisms made by Mr. Tourell on that account are wholly unjustified.
19. Another point that is taken by Mr. Tourell relates to a provision in the 1988 regulations relating to "hardship procedures". These applied to officers in post at 1st December 1986 and aged 50 or more at that date who, as a result of the reduction of the normal retirement age from 65 to 60, had to retire earlier than they had originally expected. Provision was made for them to be allowed to apply to be retained on the ground of serious hardship.
20. That concession and the fairness of that exception are, to my mind, obvious. Yet Mr. Tourell submits that the introduction of that change was arbitrary. On no ordinary use of language is that true. He submits that it became illegal when, in 1996, a new policy was adopted by the Civil Service. This was the Equal Opportunities in the Civil Service policy. That policy was that all eligible people must have equality of opportunity for employment and advancement on the basis of their suitability for work, and that there must be no unfair discrimination on the basis of age, disability, gender, marital status, sexual orientation, race, colour, nationality, ethnic or national origin or community background.
21. Mr. Tourell fastens on the reference to age. He submits that there has been discrimination against him on the grounds of age because he was too young by not being aged 50 when he was in post on 1st December 1986 to be able to apply for the application of the hardship procedures to him. It is to be noted that (as indeed the tribunal observed when considering this argument) that Mr. Tourell raised no objection in 1988 but continued to work on the terms and conditions which included the hardship procedures. He submits that he could not have complained at that stage because in the hardship procedures (paragraph 10) it is stated that applications made before the formal notification of retirement is issued will not be considered. But no one is suggesting that he should have made an application in 1988 or in the subsequent years, given that he would never qualify. Plainly, if he objected to the hardship procedures as being included in his contract of service and being limited in the way that I have described, that was an objection to the terms and conditions of his employment. However, it is not apparent that there was any such objection and the tribunal rightly found it was far too late to take that objection now.
22. In any event, the tribunal, which carefully considered whether or not that general statement of policy had become a term or condition of Mr. Tourell's employment, reached the conclusion that it did not become incorporated into his contract of employment.
23. I have to say that it seems to me absurd to suggest that the hardship provisions became illegal when, in 1996, the general statement that there should be no discrimination on the ground of age was promulgated. In my judgment, there is no real prospect of success on this point. As I have said, it was fully considered by the tribunal in its decision promulgated on 17th April 2000.
24. I am not persuaded by any of the grounds of appeal which Mr. Tourell wishes to put forward. I do not think that any of them has a realistic prospect of success. No other compelling reason has been shown why this appeal should be allowed to go ahead. Indeed, I would pay tribute to the care with which the tribunal has, in its several decisions, examined the mass of documentation put before it. It has expressed its conclusions and reasoning with great lucidity and, in my judgment, correctness.
25. For these reasons, I must refuse this application.
ORDER: Application refused.