United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR J HARRINGTON (Representative) Centre Parcs Ltd Kirklington Road Eakring Newark Nottinghamshire NG22 ODZ
For the Respondent	MR D CRAIG (of Counsel) Messrs Hopkin & Sons Solicitors Eden Court Crow Hill Drive Mansfield NG19 7AE


 


JUDGE JOHN BYRT QC: This is an appeal from a decision on a preliminary issue, promulgated on 19 August 1997, whereby the Employment Tribunal sitting in Nottingham held that the employee, Mrs B Richardson, was entitled to bring a claim under section 94 of the Employment Rights Act 1996 and, in so holding, rejected the employers' contention that this Tribunal had no jurisdiction to entertain such a claim because she had reached the Company's normal retirement age. Having lost on that issue of jurisdiction, the employers admitted that they had dismissed Mrs Richardson for no reason other than their belief that she had reached that normal retirement age and therefore, subject to their right of appeal on that preliminary issue, conceded that the dismissal was unfair.

The employers now appeal the Tribunal's decision on that preliminary issue.

The employee has the right under section 94 of this Act not to be unfairly dismissed but loses that protection if section 109(1) applies. That subsection provides that:

"(1) Section 94 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."

Of course, the converse applies. If the employee has not yet reached the normal retirement age by the date of termination, she has a right to bring a claim for unfair dismissal and the Tribunal has jurisdiction to adjudicate upon it.

The facts of the present case as found by the Tribunal are as follows: Mrs Richardson was employed by the Appellants as a retail assistant in their premises at Sherwood Forest Holiday Park. When in 1987 she applied for the job, she had lied about her age. She had completed a form saying she was born in 1942 when in fact her year of birth was 1936. The Appellants learned of her true age in February 1997, and accordingly, with due notice, terminated her employment since, being 61 years old, she was over what they said was the normal retiring age of her group.

Her contract of employment incorporated the Staff Handbook which stipulated a retirement age of 60. There is a presumption that the normal retiring age is the same as the contractual retiring age but this presumption can be rebutted if it is proved that the expectation of the group to which the employee belongs is otherwise. The Appellants, when before the Tribunal, conceded that, prior to 1994 the contractual retirement age was more honoured in the breach than the observance. They accepted that, in the result, people's expectation of when they would retire was different from that stipulated in the contract and that therefore the contractual retiring age had ceased to reflect the normal retiring age.

In 1994, management decided that the normal retiring age should be reasserted to be 60. The burden of showing that they had succeeded in bringing the norm into line with what was stated in the contract rested with them. However the way the Appellants went about informing the staff of their intentions was always likely to cause them problems in Court should the matter be tested. No written communication was sent to the employees. The Appellants relied on a series of group meetings in which the appropriate manager orally briefed the staff in his group. Those over 58 were also individually spoken to and as they were nearing the new retirement age they were granted some indulgence to soften the hardship the new rules might cause them.

All this evidence was related by Mrs Langley, the Appellants' personnel manager. But the Tribunal found her evidence, in part, unsatisfactory. She was unable to produce a briefing note issued to the group managers, nor could she say what might have been in such a note. Further, she had no record of the staff who had attended such briefings, and was unable to say whether Mrs Richardson or anyone from the group of retail assistants had attended one.

The Appellants relied on two further pieces of potentially important evidence. Mrs Langley produced a schedule which showed that, from 1995 until the termination of Mrs Richardson's employment in February 1997, all those who had retired were either 59 or 60, save for 9 people who were genuine exceptions to the norm. The Tribunal took the view that these figures did not help the Appellants' case because all those who had retired were domestic staff. None had in that period retired from the group to which Mrs Richardson belonged, namely the retail assistants. She had heard talk amongst the domestics that some were being retired at 60 but at the same time she saw some were staying on past that age. The Tribunal noted that, at the date of the hearing, at least four domestics currently employed were over 60. The Tribunal stated that, in their opinion,

"It is not ... sufficient to establish the existence of a normal retirement age, that an employee holding one position should overhear conversations amongst employees holding a different position which suggests that that which had been wholly uncertain may now possibly have become more certain. ..."

Secondly, the Appellants relied on an admission which Mrs Langley claimed Mrs Richardson had made at the termination of her employment to the effect that she knew the normal retirement age was 60. Mrs Richardson emphatically denied that she knew any such thing or that she had ever made such an admission. The Tribunal expressly stated in their Reasons that they accepted Mrs Richardson's evidence on this issue, and inferentially therefore rejected Mrs Langley's evidence about this.

The Reasons record that Mr Harrington, for the employers, had reminded the Tribunal that they were concerned with the expectations of the employees holding the position Mrs Richardson held, namely that of retail assistant. But the Tribunal, in their Reasons, went on to state that, in their judgment, they had not heard "a shred of evidence" as to the expectations of that group collectively. They concluded that the employers had "failed to satisfy the Tribunal, on the balance of probabilities, that there was a normal retiring age for employees holding the position of retail assistant below the age specified in section 109(1)(b) of the Act, namely the age of 65".

When the matter comes before us on appeal, the employers have sought to strengthen their circumstantial case with amendments to their Notice of Appeal in which they made reference to consultations with the Village Staff Councils, and to what retail assistants had been told on recruitment since 1995. The Chairman's notice of evidence make no reference to such matters. In his letter, dated 23 February 1998, he inferred from an absence of any such record that neither of these matters were adduced in evidence before the Tribunal. This conclusion is supported by Mrs Richardson's recollections that there was no such evidence: see the letter dated 22 January 1998 from her solicitors, Hopkins & Sons. On the basis that there is no record of either of these matters in the full notes of the Chairman, we are not satisfied that they were raised before the Tribunal below, and are of the view that it would be wrong for us to take them into account now.

In arguing the appeal before us, Mr Harrington has particularly stressed two points. Rightly perceiving the significance of the Tribunal's rejection of the claim that Mrs Richardson had admitted she knew the normal retiring age was now 60, he argues that this finding of the Tribunal is perverse. He says that, in rejecting this crucial part of the Appellants' case, the Tribunal failed to take sufficiently into account Mrs Richardson's admitted lies she told to get the job in 1987, and her continued dishonesty in failing to own up to her real age until she was tackled about it in 1997 by her employers.

This issue was one of the focal points in the case. Although it would seem from the Chairman's notes of Mr Harrington's closing submissions that he raised the issue of Mrs Richardson's lies in a different context, it is, in our judgment, inconceivable that the Tribunal would have considered the claim of the alleged admission without assessing the comparative credibility of both Mrs Richardson and Mrs Langley. In doing so, they must have taken account of her admitted lying in the past when assessing the quality of evidence each gave before them from the witness box. It is not for us to say how we would have decided had we heard the evidence. It is the function of the Tribunal below to decide such difficult conflicts in the evidence and not for us. We are unable to disturb their findings unless we are impelled by the obvious unreasonableness of the decision to set it aside. Having carefully considered the record of the evidence given and the Tribunal's Reasons on this point, we are unable to say that it was an unreasonable decision for the Tribunal to make after they had seen the two relevant witnesses and heard their evidence as a whole. Accordingly, we are not prepared to upset this particular finding of the Tribunal.

Next, Mr Harrington argued that the Tribunal focussed their attention, or too much of it, on Mrs Richardson's own subjective perception of what was the normal retiring age for her group. This was the point picked up by the Employment Appeal Tribunal at the preliminary hearing as being of particular interest.

We have considered this submission with care in the context of what the Tribunal say in their Reasons. We are of the view that they considered Mrs Richardson's perceptions in paragraph 3(e) at such length because it had been put to her that she had knowledge of the normal retirement age of 60. This necessarily involved them in a consideration of what she knew and to what she might have admitted. It is plain however from what is said in paragraph 3(f) that, following a consideration of what Mrs Richardson might have known, Mr Harrington had reminded the Tribunal of the need to consider the collective perception of the group to which she belonged. Thereafter the Tribunal direct themselves correctly as to the question which has to be asked and answered. It is then that the Tribunal make their crucial finding that they had not heard "a shred of evidence" as to the expectation of the retail assistants. On that analysis of the Reasons, we are satisfied that the Tribunal directed themselves as to the correct approach, and answered the relevant questions in a way which shows they applied the law correctly.

Strictly speaking, the Tribunal were accurate when they said they had heard no evidence as to the relevant group expectations. It is plain, however, that the Appellants are aggrieved that the Tribunal were not prepared to infer what that expectation might be from the evidence given by Mrs Langley and the statistical information she produced. It is our view that the Tribunal was entitled to expect better, more direct evidence from those within the group concerned, from someone who could fairly claim to be representative of the group as a whole. That is, not someone from within that section recruited since 1995; nor from that section treated exceptionally, namely the 58 and over section. It would seem that there might have been such a representative among those retail assistants in the Village Council but none was called.

The Tribunal expressed surprise in paragraph 3(c) that the Appellants had not resorted to the simple expedience of notifying in writing all 960 employees, of the reimposition of 60 as the normal retiring age. There can be no doubt that their failure to do so, caused them serious evidential problems but in our judgment it was legitimate for the Tribunal to view this failure as the Appellants' problem as the burden rested upon them to prove the normal retirement age for Mrs Richardson's group. The Tribunal clearly considered the Appellants had failed to discharge that burden. We, for ourselves, cannot see that the Tribunal fell into error in taking that view.

Accordingly, we must dismiss this appeal.