United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 814_95_0812

Appeal No. EAT/814/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 8 December 1995

Before

HIS HONOUR JUDGE P CLARK

MRS E HART

MR A E R MANNERS

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MRS K CLARKE          APPELLANT

MARKS AND SPENCER PLC          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR CLARKE

(Husband)


 


JUDGE CLARK: Mrs Clarke was born on 16 October 1933. She commenced part-time employment at the Respondent's Cheshunt store on 23 January 1989. After she reached her sixtieth birthday on 16 October 1993 her employment was extended by a series of temporary contracts, it finally being terminated on 31 May 1994.

She presented a complaint to the Industrial Tribunal alleging age discrimination, sex discrimination and unfair dismissal. The Tribunal observed that there was no statutory protection against age discrimination; it was satisfied that the normal retirement age for employees holding the position with the Respondent which she held was 60 and that it therefore had no jurisdiction to entertain her complaint for unfair dismissal by virtue of section 64(1)(b)(i) of the Employment Protection (Consolidation) Act 1978; and it further concluded that these employers operated a retirement policy which was not unlawfully discriminatory on the grounds of sex. Accordingly, her complaint was dismissed.

Against that decision Mrs Clarke now appeals.

Our powers to interfere with decisions of the industrial tribunal are limited to correcting errors of law under section 136(1) of the 1978 Act.

The grounds of appeal advanced by Mrs Clarke are these: first, that the contract of employment put before the Tribunal by the employer was not hers. She is Mrs Kathleen Clarke of 41 Lower Meadow, Brookfield Lane, Cheshunt. The employee whose contract was put in evidence was a Mrs Katherine J Clark (without an "e") who lived in Enfield, Middlesex and commenced employment with the Respondent on 13 November 1989.

It would appear that the contract signed by Mrs Clark (without an "e") dated 6 November 1989 was in standard form and, in any event, nothing turned on the wording of that document. Had it done so, no doubt any material distinction would have been drawn to the attention of the Tribunal by or on behalf of the Appellant. Indeed, she pointed out in evidence that it was not her contract.

Secondly, she takes further evidential points, which do not materially affect the conclusions of the Tribunal and her real complaint is that a fellow employee, Mr Beck, was allowed to continue until the age of 65 where she was not.

The evidence before the Industrial Tribunal referred to in paragraph 9 of the reasons was that in the Tribunal's decision, three men and one woman, were granted extensions beyond the age of 60. Looking at the document on page 51 in the bundle it does appear that there were, in fact, two men and two women, but the point remains the same. The Tribunal regarded these cases as exceptional. They included both men and women and they found as, in our view, they were entitled to do, that that did not render Mrs Clarke's dismissal discriminatory.

Finally, she complains that her representative, Mr Themis, was made to look incompetent when asked by the Chairman if he had any evidence about the employment of men. But whether or not he was, or appeared to be incompetent, is not a matter which provides grounds for an appeal to this Tribunal.

In these circumstances, we feel bound to conclude that this appeal raises no arguable point of law and it must, therefore, be dismissed.