United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 955_95_0612

Appeal No. EAT/955/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6 December 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MRS R CHAPMAN

MR P DAWSON OBE

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MRS E WARD          APPELLANT

ROYAL MAIL LETTERS SOUTH CENTRAL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised 1.3.96


 


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APPEARANCES

For the Appellant NO APPEARANCE BY OR

REPRESENTATION ON

BEHALF OF THE APPELLANT


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Mrs Elfriede Ward against the decision of the Industrial Tribunal held at Southampton on 24 July 1995. The Tribunal heard a claim by Mrs Ward that she had been unfairly dismissed by Royal Mail Letters South Central.

In the extended reasons sent to the parties on 8 August 1995 the Tribunal explained why, by reason of age, Mrs Ward was disqualified from the right not to be unfairly dismissed. Mrs Ward was dissatisfied with that decision. She appealed by her notice of appeal dated 4 September 1995, received in the Appeal Tribunal on 5 September.

She stated various grounds of appeal under headlines of precedents, inadmissible evidence, inadmissible reasons for dismissal, perjury, corrupt contract, discrimination and Employment Protection (Consolidation) Act 1978 section 140 and section 141. She attached to the notice of appeal a document of detailed comments under those various headings. She has added to them fundamental rights, infringement of fundamental rights of European Law. In further documents sent to the Tribunal as recently as 3 December 1995, she has made detailed observations on and criticisms of the decision rejecting her claim.

In the letter of 3 December she said that she would not be able to attend today's hearing due to physical disability and the use of medication. She wished, however, the case to proceed in her absence. She wants a decision which will enable her to take the issue of unfair dismissal further, as necessary. She concludes with apologies for inconvenience, stating that medical factors have prevented her from attending outside her control.

The preliminary hearing is to determine whether the various grounds of appeal advanced by Mrs Ward in her written submissions raise arguable points of law. If they do not, the appeal should be dismissed now. No purpose would be served in allowing the appeal to go forward to a full hearing at which this Tribunal would only have power to interfere with the decision of the Industrial Tribunal on grounds of law.

In arriving at our views we have considered the extended reasons for the decision and the written arguments of Mrs Ward. The decision against which she appeals is clearly reasoned in the Tribunal's extended reasons. They identified the issue:

"This matter has been listed for hearing on the preliminary point as to whether or not under Section 64(1)(b) of the Employment Protection (Consolidation) Act 1978, by reason of age, the applicant is disqualified from the right not to be unfairly dismissed."

At the hearing Mrs Ward appeared in person. She gave evidence. The solicitor for the Respondent argued the case, called one witness and put in 45 pages of documents. The Tribunal correctly summarised the relevant provisions:

"3. Section 64 provides that an employee loses the right not to be unfairly dismissed once he or she has, on or before the effective date of termination of the contract of employment, attained the normal retirement age or if none the age of 65."

They cited the leading case on the interpretation of that section, the decision of the House of Lords in Waite v Government Communications Headquarters 1983] IRLR 341. They quoted, at various points in their extended reasons, passages from the speech of Lord Fraser.

The Tribunal went on to find the facts. We pause to comment that there is nothing that this Tribunal can do, in its limited jurisdiction, to alter the decisions of fact by the Industrial Tribunal.

The Tribunal found that on 30 May 1995, when she was just under 61 years of age, Mrs Ward's contract of employment was terminated. She presented to the Tribunal her originating application on 5 April 1995, complaining that she had been unfairly dismissed from her position as a part-time postwoman. She began her employment with the Respondents as a postwoman on 26 January 1987. A crucial finding by the Tribunal was that her terms of employment contained the following provision:

"The normal retirement age for Post office employees is 60. Retention beyond the normal retirement age may be possible subject to the needs of the Post Office."

On 5 April 1993 she was asked by the Respondents whether she wished to be considered for continued employment beyond the age of 60. On 8 April 1993 she indicated that she wished to be. Her immediate supervisor, Mr Yard, was consulted. He recommended retention. Had he not recommended retention her Union would have been consulted. Following Mr Yard's recommendation her Delivery Area Manager considered her request to be retained and granted it with effect from 3 June 1994. Retained employees are told that their contracts of employment are subject to review six monthly and that they are retained subject to three months' notice.

Unfortunately for Mrs Ward, at the beginning of January 1995 she became ill. She was unable to work. The Respondents, in accordance with an agreed procedure, consulted her Union as to whether the Union had any objection to her not being retained any longer. The Union indicated on 3 March 1995 that there was no objection to the non-retention of Mrs Ward. On 7 March she was given notice to terminate her contract of employment on 30 May but was unable, as a result of illness, to work out that notice.

The Tribunal made findings of fact in relation to the work done by Mrs Ward before and after 3 June 1994 and referred to the statistics put before them to the effect that in the relevant area, which was the Hythe Sorting Office, part of the Southampton South Central Area, the figures were that 29.3 percent of the workers in that area leave on attaining 60 and the remainder 70.7 percent leave between 60 and 65.

The Tribunal referred to the case of Waite and said this:

"On the basis of the facts adduced in the instant case it is necessary to decide what, on 30 May 1995, was the normal retiring age applicable in respect of employees doing the same category of work as the applicant.

12. Lord Fraser in the Waite case said that the contractual retiring age will prima facie be the normal one, but it may be displaced by evidence that it is regularly departed from in practice. Alternatively the evidence may show merely that the contractual retiring age has been abandoned and that employees retire at a variety of higher ages in which case there will be no normal retiring age and the statutory age of 65 will apply."

There are no misdirections contained in those passages of the extended reasons on the correct interpretation and application of the statutory provisions.

The Tribunal continued:

"What is the reality in the case of postmen and post women? The reality is that the respondents alerted those employees from the beginning that their contracts of employment would only endure up to and including the day before the employees sixtieth birthday. Those employees could then apply for another contract of employment and if there was a need they might, if considered suitable, be offered one. The statistics for the Southampton Central Area of which Hythe formed part show that no less than 70.7% were offered new contracts, stayed on beyond 60 and left by the age of 65.

14. The applicant has argued that the normal age of retirement was not in fact 60 but some greater age for in fact over 70% of employees worked beyond that age. Contractually all such postal workers contracts of employment terminated on the day before their sixtieth birthdays. They could apply for new contracts different from the previous ones in that the new one's were subject to review every six months and were subject to termination on three months' notice. Contractually the respondents were under no obligation to offer employees new contracts. According to Lord Fraser in the Waite case the proper test is `to ascertain what would be the reasonable expectation or understanding of the employees holding the position at the relevant time'. On the facts of the instant case the expectations could be of two sorts. One employee with knowledge of the contractual position would say to himself `the post office will compulsorily retire me at the age 60 but if when I attain that age they have a continuing need for my services and I apply I will probably be offered continued employment'. Another employee may not understand the contractual position and say to himself `over 70% of employees doing my kind of work continue in employment beyond the age of 60 and so I will be able to do so'. The former but not the latter would be the reasonable understanding or expectation from which it follows that nothing has been done by the respondents or has occurred to substitute a greater age than sixty as the normal retirement age. As the applicant was on 30 May 1995 older than the normal retirement age of 60 she no longer had the right not to be unfairly dismissed which means that she is precluded from pursuing her claim for unfair dismissal."

In our view, there is nothing legally wrong with that decision. Mrs Ward may disagree with it and find it difficult to accept the consequence that she cannot pursue her case. But, in our view, the Tribunal found facts which we cannot disturb and they have correctly applied to the facts found by them, the provisions of s.64(1)(b), as interpreted by the House of Lords in Waite.

In those circumstances we do not find it necessary to consider in detail the numerous grounds on which Mrs Ward makes criticisms of the Industrial Tribunal. It is fair to say that most of the grounds advanced bare little or no relation to a legal point arising from the decision of the Tribunal. There are many allegations of a serious kind, such as fraud, unsupported, either by any material before the Industrial Tribunal or by any evidence before us now. We appreciate the strength of Mrs Ward's feelings of grievance on this matter, but feelings of grievance do not amount to points of law on an appeal.

In these circumstances we do not think that there is any point in this case going beyond the preliminary hearing. There is no arguable error of law in the decision of the Tribunal. It is, accordingly, dismissed.