United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 887_94_1711

Appeal No. EAT/887/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 17 November 1994

THE HONOURABLE MR JUSTICE HOLLAND

MR W MORRIS

MR A D SCOTT

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MISS L GUTIERREZ LOPEZ          APPELLANT

ARMY & NAVY CLUB          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant IN PERSON


 


MR JUSTICE HOLLAND: We have before us an Appeal by Miss Lopez against a part of a decision made by an Industrial Tribunal sitting on the 15th August 1994 at

London South. On that day that Industrial Tribunal had before it a Preliminary Issue. The Preliminary Issue arose in this way, Miss Lopez had brought a claim against her former employers the Army and Navy Club for unfair dismissal. The club objected that the Industrial Tribunal did not have jurisdiction to deal with that claim and in the event, the Tribunal ruled in favour of the club. That then left as continuing a further parallel claim brought by Miss Lopez, this time for discrimination as defined by the Race Relations Act. That parallel claim is continuing and it is due to come before the Tribunal by way of a substantive hearing in due course. Miss Lopez contends that the Industrial Tribunal was wrong in its decision on the Preliminary Issue with respect to her first claim and invites us to allow an Appeal on that basis, so that her first claim may proceed.

Before coming to the law, the facts can be shortly stated. On the 3rd July 1986 Miss Lopez entered a contract of employment with the club as a secretary. That contract is before us and it is apparent that there is nothing in the contract at all which specifies what is the retiring age. It leaves that point entirely open. On the 19th July 1988, a letter was written by the House manager of the club in support of an application then being made by Miss Lopez for a mortgage; it served to demonstrate the continuity of her employment and her prospects and it includes this sentence:

"It is the policy of the Army & Navy Club to allow the staff to work after retirement age provided the employee's health is sound and fit to work and no misbehaviour occurs."

On the 15th June 1993, Miss Lopez together with other employees of the club received a standard letter sent out by the Chairman of the club, General Owen. That letter reads as follows:

"RETIREMENT AGE FOR EMPLOYEES

For avoidance of doubt, the Committee has, decided to take account of current government and EEC practice and set the normal retirement age for both men and ladies at 65, whilst accepting that ladies, for the present, may opt for retirement at 60.

The Committee recognise that many staff enjoy working after they have reached 65 and this is generally a very commendable ambition. It suits some people and is normally welcomed by members. It leads to a harmonious arrangement for us all.

However, I am sure you will agree that we age at different rates and this affects our performance. Furthermore, by working after retirement age, we may be preventing someone much younger from earning a living.

In order, therefore, to try and achieve what is likely to be fairest and best for our staff and helpful to the Club, members of staff who are approaching 65 should expect to retire at 65. Depending upon their wishes, and at the discretion of the Secretary, they may be allowed to extend their service for a year at a time. Those who are now 65 and over will each receive a personal letter from the Secretary and will be invited to discuss their future with him and with Mr Garratt.

I realise that this letter may come as a shock to some members of staff but we have to try and do what is best for the Club as a whole. This will, inevitably, lead to changes.

In conclusion, I must add that we all appreciate greatly the time and effort you devote to the Club and the Committee will do its best to ensure that you are treated as fairly as possible."

On the 23rd December 1993, Miss Lopez reached her 65th birthday and to her great chagrin was directed to retire, that is, was dismissed as at that date. It is against that dismissal that she brings the complaint that was before the Industrial Tribunal. It is plain that she feels very strongly about this matter and looking at the material which she put before the Industrial Tribunal and has put before this Tribunal, one can certainly see the grounds for her chagrin. At the club there are a substantial number of employees who have continued to work after the age of 65, some indeed to a very substantial age. Why then, she asks rhetorically, should I be dismissed as soon as I reach my 65th birthday? That dismissal is unfair and the Tribunal should award me compensation. The problem that confronts Miss Lopez, on this part of her claim arises under Section 64 of the Employment Protection Consolidation Act 1978, Section 64(1) reads as follows:

"Section 54 does not apply to the dismissal of an employee from any employment if the employee-

(b) attained the following age on or before the effective date of termination, that is to say-

(i) if in the undertaking in which he was employed there was a normal retiring age for an employee holding the position which he held and the age was the same whether the employee holding that position was a man or woman, that normal retiring age; and

(ii) in any other case, the age of sixty five.".

For Miss Lopez, that section presents this difficulty. Was there a normal retiring age in this club? and in particular, was there a normal retiring age which was higher than the age of 65? The contention before the Tribunal for the club was, that there was a normal retiring age namely, the age of 65, which normal retiring age, having been established as a result of the letter of the 15th June 1993.

The Tribunal rejected that latter contention, but, having considered all the evidence, found that there was no normal retiring age for employees of the club. Turning back to Section 64 1(b) they were driven to find that for their purposes, the retiring age was as a matter of law 65, and thus it was that they did not have jurisdiction to deal further with Miss Lopez's claim so far as that related to unfair dismissal.

As, I hope Miss Lopez appreciates, this Employment Appeal Tribunal can only allow appeals in situations in which it is satisfied that the Industrial Tribunal has made an error of law, and to that end all three members of this Tribunal have examined very carefully indeed the way in which this Industrial Tribunal pursued this particular issue. We note that in the course of the Reasons, the Tribunal cited the House of Lords decision in Waite v Government Communications Headquarters [1983] IRLR 341 which is the leading case in this particular branch of the law. In that case, Lord Fraser of Tullybelton delivered the leading speech and cast particular light upon this problem created by Section 64(1)(b), when he said as follows at 344:

"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 retiring 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."

One hastens to add that since that judgment was delivered, the latter age has become 65.

The guidance given by Lord Fraser in that Speech is particularly relevant to the instant circumstances. Here we have a situation in which there was initially no contractual retirement age; there has been a subsequent attempt by the club to impose a normal retiring age; but what we have is precisely what Lord Fraser identified, that is, employees retiring at a variety of higher ages so that there was no normal retiring age at all. As he points out, it is inevitable that when that state of affairs arises, then one falls back to the rule made by Parliament so that one has to take the age of 65 as did the Industrial Tribunal in this particular case.

In considering these papers and in considering the very helpful written submissions made by Miss Lopez, all three members of this Tribunal have looked very carefully at this evidence, to see whether one could discern in that evidence, a normal retiring age higher than 65. The answer is that there is such variety in the evidence that no such normal retiring age can be identified and indeed when asked in this Tribunal, Miss Lopez herself was unable to put such a date forward - understandably, having regard to the material at her disposal. Again, in considering this matter, the Tribunal has contemplated the possibility of trying to fix a normal retiring age by reference to the mesne average age at which employees have retired. But that pragmatic course has, unfortunately for Miss Lopez, been ruled to be unlawful by this Tribunal in Swaine v Health & Safety Executive [1986] ICR 498.

The end result is that, given its sympathy for Miss Lopez, this Tribunal has done its best by reviewing very carefully the decision of the Tribunal, by reviewing the law and by reviewing the facts that she has put before us, but, in the event, we find ourselves quite unable to find that this Industrial Tribunal misdirected itself as to law in its decision of the 15th August 1994. It follows that we find ourselves quite unable to uphold the appeal of Miss Lopez against that part of the finding. We do have a comfort. We know nothing of the merits of the parallel claim made pursuant to the Race Relations Act but the essence of the claim can be put simply: why was it that I at the age 65 was asked to retire when so many others were not? Understandably, that is a grievance for Miss Lopez, but it is a grievance that can best be investigated in the course of a further hearing which will inevitably direct itself to that very point. Thus, this is not one of those cases in which the Applicant finds herself totally unable to have a grievance investigated, but such will be pursuant to a parallel claim not pursuant to a claim for unfair dismissal.