United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR BRUCE CARR (of Counsel) Instructed by: HM Customs & Excise Law Enforcement Legal Services Group HM Customs & Excise 5th Floor West Ralli Quays 3 Stanley Street Salford M60 9LA
For the Respondent	MR MURRAY SHANKS (of Counsel) Instructed by: Messrs Brachers Solicitors 59 London Road Maidstone Kent ME16 8JH


 


THE HONOURABLE MR JUSTICE WALL

Introduction

1. In this appeal, HM Customs & Excise (the Appellant) appeals the unanimous Decision of the Employment Tribunal held at London South on 6 August 2001 (with Reasons produced on 10 August 2001) that:

"the normal retiring age for employees holding the position held by Mr. Jayawardane, a Band 6 employee within Customs & Excise is 62 years of age. Mr. Jayawardane therefore has the right not to be unfairly dismissed."

2. A merits hearing was scheduled to take place on 21 September 2001, but has been adjourned pending the outcome of this appeal.
3. The appeal requires the EAT to give further consideration to section 109 of the Employment Rights Act 1996 (ERA) which disapplies ERA section 96 (the right of an employee not to be unfairly dismissed by his employer) in the following circumstances, namely:

"(1) …….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 that 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."

4. The questions raised by this appeal are deceptively simple in appearance. Is there a normal retirement age in the Appellant's organisation for employees of Mr Jayawardane's grade? If so, what is it? The Tribunal held that there was, and that it was sixty two. The Appellant argues that it is sixty, and would, ideally, like us to make a finding to that effect, thereby resolving the jurisdictional issue in the Appellant's favour once and for all. However, Mr. Bruce Carr, for the Appellant, fairly and realistically recognised that if he can demonstrate the reasoning and conclusion of the Tribunal to be wrong in law, the issues which will go to decide the question of the normal retirement age for persons in Mr Jayawardane's position are, essentially, evidential and factual; accordingly, if we set aside the Tribunal's order, it will be necessary for us to remit the application to a fresh Tribunal for re-hearing.
5. With equally commendable frankness, Mr Murray Shanks, for Mr Jayawardane, recognises that the reasoning of the Tribunal is open to criticism. Nonetheless, he robustly submits that the Tribunal reached the right result, and that we should not, accordingly, interfere. He also points to the fact that Mr Jayawardane had his sixtieth birthday on 25 May 2000. He is already sixty two (his normal retiring age as found by the Tribunal) and if the question of jurisdiction has to be re-litigated in a new Tribunal, he is unlikely, if that Tribunal finds in his favour, to reach a remedies hearing until he is sixty three or possibly sixty four. Mr Shanks also points out that the proceedings were commenced by form IT1 signed by Mr Jayawardane on 27 February 2001, with the consequence that they have already been on foot for twenty months without their merits being considered. He urges on us the inevitable strain which such delays engender.
6. We have considerable sympathy for Mr Jayawardane in the position in which he finds himself, albeit that we are not concerned with the underlying merits of his claim. Inevitably, however, we have a judicial function to perform and if we find that the Tribunal has fallen into error, we are in no doubt that it would be quite wrong for us, on the facts of this case, to attempt to substitute our own view for that of the Tribunal. The inevitable result, accordingly, is that the matter would have to be remitted to a fresh Tribunal to be considered afresh.

The facts and the documentation

7. In order to understand the Tribunal's reasoning in this case, it is first of all necessary for us to examine the facts. Mr Jayawardane was born on 25 May 1940. He started working for the Appellant in April 1975 when he was thirty five. His employment was terminated by the Appellant on 30 November 2000, when he was aged sixty and a half.
8. In his form IT1, Mr Jayawardane states that on joining the Appellant he received a letter of appointment, although he was not given a formal written contract. Amongst the somewhat eclectic documentation provided for the Tribunal is a "Statement for New Recruits" which appears to relate to a Mr Skinner, who was appointed an Established Executive Officer in the Appellant as from 3 November 1975. It seems to be common ground, however, that the contents of this document were similar if not identical to the document which would have been given to Mr Jayawardane. Its relevance for current purposes is that in the paragraph headed "Superannuation Benefits" the following is provided:-

"Superannuation Benefits are provided under the Principal Civil Service Pension Scheme, which (apart from widow's benefits) is non-contributory. For those who retire with at least five years' service having reached the retiring age (normally 60) an annual pension is paid of one-eightieth of pensionable pay for each year of reckonable service, together with a once-for-all lump sum of three times the amount of the annual pension ……"

Mr Carr relies on this paragraph in Mr Skinner's contract, and points out that no reference was made to it in the Tribunal's Reasons.

9. To assist our attempt fully to understand the Mr. Jayawardane's position, we were also referred to a document entitled "Volume G3 Personnel Guidance: Part 8 Pensions" produced by the Appellant and dated July 1999. Chapter 2 of that document is headed "General Principles". Section 1 of Chapter 2 deals with retirement. It reads as follows:

"1.1 When can I retire?

You can retire when:
· you have reached the minimum retiring age of 60 (or less in certain circumstances, as explained in this book); or
· you have reached the maximum retiring age (see below).


The maximum retiring ages at present are:
· 60 for staff in job Band 7 and above:
· 62 for staff in Job Bands 5 and 6:
· 65 for staff in Job Bands 1 - 4.

1.2 Retention beyond the minimum retiring age (Job Bands 1 - 6)

Whether you can be retained will depend on factors such as
· your fitness:
· your efficiency: and
· the overriding needs of the Department.

In the view of [sic] the Department's custom and practice over many years of allowing staff in Job Bands 1-6 (and formerly at EO grade and below) to stay beyond age 60 if they wished (subject to health and efficiency), you cannot be required to leave before 62 (Bands 5 and 6) or 65 (Bands 1-4) unless you are made compulsorily redundant.

If you are considered suitable for retention beyond age 60, you will normally be
given a choice of:

· 'final retirement 'on the eve of your 60^th birthday:
· 'formal retirement' which allows you to receive your superannuation lump sum) on the day before your 60^th birthday, or on a later date, and immediate re-employment: or
· retention after your 60^th birthday without taking 'formal retirement'

You will normally be given these options no later than six months before your 60^th birthday.

1.3 The role of the Personnel Management Unit (PMU)

The PMU is responsible for carrying out a review before age 59½, to determine if a person is suitable for retention.

10. Within a box, there follows the following instruction to PMUs:

"You must carry out the review before the person reaches age 59½, otherwise the necessary 6 months' notice of retirement may take him or her over the age of 60. ….."

11. At paragraph 1.7 of the document (headed 'Notice of retirement'), Mr Jayawardane is told the following:

"You will normally receive 6 months' notice of your retirement at age 60. This will not necessarily be in the form of a letter. Your PMU will ask you to complete certain forms which will constitute the term of notice. If you wish to retire before reaching the maximum retiring age (for those in Job Bands 1-6) you should give your PMU at least 3 months' notice to ensure the Contractor has sufficient time in which to prepare your pension award. PMUs should ensure they deal with all applications promptly."

12. Mr Jayawardane's post is within Band 6. He asserts, and this is supported by the documentation, that in September 1999 he received a letter from the Appellant asking him what he wanted to do about retirement. He was given three choices. The first was formally to retire at age sixty. The second was formally to retire at sixty, draw his lump sum and be re-employed at the same grade until he was sixty two. The third was to continue on the same grade until he was sixty two without retiring.
13. Mr Jayawardane chose the second option, thereby, he says, demonstrating his clear intention to stay on until he was sixty two, provided his levels of health and efficiency were satisfactory. His case was that it was normal custom and practice on the Appellant's part to allow an Officer's wishes to be granted as of right.
14. Mr Jayawardane asserted that it was not until 22 May 2000 (three days before his 60th birthday) that he was notified of the Appellant's decision not to re-employ him. He appealed that decision internally, but says he was met with the argument that he was ineligible to appeal as he had reached his pensionable age. The Appellant, or course, took the same jurisdictional point before the Tribunal. It submitted that since Mr. Jayawardane's Form IT1 was issued after his sixtieth birthday, ERA section 109 precluded the Tribunal from entertaining the claim.
15. The only other policy material which we were shown as emanating from the Appellant was a document headed in the top right hand corner "Inefficiency" and sub-headed "Section 8 Health and efficiency of officers approaching the minimum retirement age". Of that document one particular passage is, we think, relevant. It reads:

"8.1 General

The minimum retirement age for civil servants is 60. No-one can be guaranteed that they will be retained beyond this point; The decision as to whether or not an officer should be retained beyond age 60 is laid to the appropriate senior manager who will consider, amongst other factors, the officer's levels of health and efficiency. The procedures in this section are intended to deal with officers whose performance is tailing off at the end of their career and should not therefore be retained beyond their 60^th birthday. Cases of more serious inefficiency, which would require action under one or more of the other procedures described in this chapter, should be managed under those procedures, regardless of the officer's age."

The document then goes on to lay down procedures for the review of the health and efficiency of officers aged 57, 58 and 59. It is this procedure which the Appellant says it followed and which Mr Jayawardane wishes to challenge.

16. Also before the Tribunal was some statistical information provided by the Appellant on 31 July 2001 (very much at the last moment before the Tribunal hearing) at the request of Brachers, the Appellant's solicitors. For ease of reference, we have inserted the Appellant's replies (sent by Email on 2 August 2001) in brackets.

"2. please inform us:

(a) How many band 6 officers ceased to work for Customs & Excise on their 60^th birthday during the year ending 30 November 2000. (Answer : 19)
(b) How many officers who had been band 6 on their 60^th birthday ceased to work for Customs & Excise during that year but on some date after their 60^th birthday. (Answer 3)
(c) The ages of the officers identified in (b); (Answer: two were sixty and one was sixty two (one was Mr Jayawardane)).
(d) The number of the officers identified in (b) who were re-graded to a band lower than 6 on their 60^th birthday and the number who were so re-graded at a later date. (Answer: none)"

17. Given the level of expertise and resources available in this case, we think it most unfortunate that the documentation for the Tribunal appears to have been put together at the last moment (the Appellant's letter to Brachers dealing with the proposed bundle of documents for the Tribunal is dated 31 July 2001 only four working days before the hearing) and that relevant statistical information was both sought and provided only at an equally late stage. Even before us, it was unclear whether the statistics provided were national or local.
18. It is a further and unfortunate irony of the case that whereas (1) in the letter of 31 July 2001, Brachers asserted that the statistical material was "clearly relevant to the resolution of the issue before the Tribunal"; and (2) it is quite clear that the Appellant would not have produced it for the Tribunal without Brachers' vigorous prompting, it was Mr. Carr, for the Appellant, who sought to rely upon it before us, and criticised the Tribunal for failing to have regard to it; whilst Mr. Shanks, for Mr. Jayawardane asserted that it was "unsatisfactory in form and content" and on any view related to only a very small sample of people. Furthermore, Mr. Shanks argued, the Appellant had not called anyone to speak to it at the Tribunal. This is hardly surprising, as the author of the E mail of 2 August 2001 stated in terms in it that she was "at a loss to understand what useful purpose could be served by (her) attendance at the hearing". The Tribunal, Mr. Shanks submitted, could quite properly ignore the information, and even if the E mail constituted proper evidence that in 2000 most Band 6 officers retired at 60, that was not determinative of the question, and it was properly open to the Tribunal to find as it did.
19. In our view, on the facts of this case, statistical evidence is relevant, and we cannot but feel that if the lawyers on both sides (particularly, we have to say, on the Appellant's side) had properly addressed their minds in good time to the issues raised by the case, the Tribunal would have been given much greater assistance than it was.

The Tribunal's reasoning

20. The Tribunal's reasoning is contained in three paragraphs of the Decision, and is in the following terms. (We have retained the designation of the parties we have used throughout this judgment):

"15 The Tribunal finds that the contractual retiring age and therefore the normal retiring age for individuals holding the position of Mr. Jayawardane, i.e a band 6 officer in Customs and Excise is 62 years of age and Mr. Jayawardane therefore does have the right under section 94 of the Employment Rights Act 1996 not to be unfairly dismissed.

16 We reached our decision by asking ourselves what would be the reasonable expectation or understanding of Mr. Jayawardane as to his normal retiring age. The Appellants own literature and in particular the bold print at paragraph 1.2 of the handbook which we again repeat.:

"in the view of the departments custom and practice over many years of allowing staff in job bands 1-6 to say on beyond age 60 if they wished (subject to health and efficiency) you cannot be required to leave before 62 unless you are made compulsory redundant"

We believe the contractual retiring age is 62, that thus affords any individual who is dismissed under age 62 and the opportunity to test whether or not the Appellants failure to allow him to stay on to 62 is fair. That we submit must satisfy the social aspect of ensuring fair treatment as regards compulsory retirement.

17. Mr. Jayawardane does not fall within the exclusions set out at S.109 of the 1996 Act and therefore has the right not to be unfairly dismissed."

The argument for the Appellant

21. For the Appellant, Mr Carr submitted that the reasoning by which the Tribunal reached its finding that Mr. Jayawardane's normal retiring was 62 was plainly wrong in law. This, he argued, was demonstrated by the Tribunal's conflation of the two, distinct concepts of the contractual retiring age and the normal retiring age. Whilst in any given case, the two may be the same, whether or not they are in fact the same is a matter of evidence. Thus by finding that 62 was the "…. contractual retiring age and therefore (our emphasis) the normal retiring age for persons holding the position of Mr. Jayawardane", the Tribunal erred in law.
22. Further, in its finding that the contractual retiring age was 62, Mr. Carr criticised the Tribunal for taking no account of the reference to a normal retirement age of 60 contained in the "Superannuation Benefits" in the Statement for New Recruits which we have set out at paragraph 8 above. This, he submitted was a primary contractual document and represented the best evidence for determining Mr. Jayawardane's contractual retiring age.
23. Mr. Carr also argued that the Handbook, on which the Tribunal did rely, could not be construed as a contractual document. What it represented was the Appellant's policy at any given time, based on custom and practice. Thus, whilst the policy contained in the Handbook could be evidence which went to the issue of whether there was a normal retiring age which was different to the contractual age, it was impermissible for the Tribunal to treat the Appellant's custom and practice as part of the contract of employment in relation to retirement. By conflating the two concepts, and by treating the provisions of the Handbook as contractual terms which determined both the contractual and the normal retirement age, the Tribunal had been plainly wrong. It followed that its conclusion that 62 was Mr. Jayawardane's normal retiring age for the purposes of section 109 ERA could not therefore stand.
24. Mr. Carr submitted that the Tribunal's conclusion was all the more surprising because it had directed itself quite appropriately by setting out a substantial (and the key) extract from the speech of Lord Fraser of Tullybelton in the case of Waite -v- Government Communication Headquarters [1983] 2AC 714 (Waite). He pointed out that, prior to Waite, the definition of "normal retirement age" had been the minimum age at which an employee could be required to retire under his contract. However, that definition had been held to be incorrect in Waite since it equated the normal retirement age with the contractual retirement age. In the passage cited by the Tribunal, at [1983] 2 AC 714, 723 Lord Fraser said this:

"I therefore reject the view that the contractual retiring age conclusively fixes the normal retiring age. I accept that where there is a contractual retiring age, applicable to all, or nearly all, the employees holding the position which the appellant employee held, there is a presumption that the contractual retiring age is the normal retiring age for the group. But it is a presumption which, in my opinion, can be rebutted by evidence that there is in practice some higher age at which employees holding the position are regularly retired, and which they have reasonably come to regard as their normal retiring age. 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 retirement 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.

In the present case the evidence does not establish that there was any practice whereby employees holding the position which the appellant held were permitted to retain their office after attaining the minimum retiring age of 60. The figures for the six years 1973 to 1978 inclusive show that a total of 41 officers holding the same position as the appellant retired. I use "retired" to include some who "regressed". Of that total, 30 retired or regressed at the age of 60. Eleven were retained after they had attained age 60, but we know nothing of the reasons for their retention. The fact that just over one quarter of the relevant group of officers were retained after they had attained age 60 falls far short of showing that the contractual retiring age had been abandoned or departed from. If the case had been a narrow one on its facts, one in which a tribunal might reasonably have taken the view that the contractual age had been abandoned, your Lordships might have thought it right to remit the case to an industrial tribunal to come to a decision on the facts. But in my view no tribunal applying the law correctly could find that the contractual retiring age had been departed from in this case. Accordingly I consider that the appellant has failed to show that the industrial tribunal had jurisdiction to consider his complaint"

25. Mr Carr relied on this passage to drive home the point already set out in paragraph 21 of this judgment, that in paragraph 15 of its Reasons, the Tribunal, (contrary to the clear statement of the law set out in the first sentence of the first extract from Lord Fraser's speech) appeared to equate the contractual retiring age with the normal retiring age. The word used is "therefore". That, Mr Carr submitted, was a clear demonstration of an error of law made by the Tribunal
26. Mr. Carr also relied on the an earlier passage from Lord Fraser's speech in the same case, which he submitted was the correct analysis here. Lord Fraser said: - ([1983] 2 AC 714 at 720H: -

"I am of the opinion that the retiring age laid down in the terms and conditions of the Appellant's employment (which I shall call the contractual retiring age) for a person holding his position was 60. The Respondents had the power, in their discretion, to retain him in his position after he had attained the age of 60 and until he reached the age of 65 ………. but he had no right under the terms of his employment to be retained after attaining the age of 60."

27. Mr. Carr accepted that even if there was a clear contractual retiring age, the reasonable expectation of employees in Mr Jayawardane's position that they would be permitted to work beyond their contractual retiring age could and should be examined to determine the normal retiring age. He argued, however, that any such reasonable expectation cannot be used to establish the contractual retiring age: any such expectation (if it exists) resulting in a normal retirement age later than the contractual retiring age is a matter of fact to be established by evidence. The correct approach was to ascertain the contractual retiring age and then decide whether or not the presumption that the normal retiring age would be the same was rebutted by evidence that there was in practice a higher age than the contractual age at which employees holding a position such as that held by Mr Jayawardane, were regularly retired and which they had, accordingly, come reasonably to regard as their normal retirement age.
28. In this context, Mr Carr relied on the statistical evidence, which the Tribunal did not appear to have taken into account. Whilst Mr Carr accepted that the proper test for any such reasonable expectation is not merely statistical, it was nonetheless implicit in Lord Fraser's speech in Waite that statistical evidence was highly relevant to establish an employer's customary practice. Mr Carr submitted that the Tribunal was wrong not to examine the statistical material carefully, arguing that its failure to do so fell foul of the direction given by the EAT in Whittle -v- Manpower Services Commission [1987] IRLR 441 at 444 and Mauldon -v- British Telecom [1987] ICR 450.

The argument for Mr. Jayawardane

29. Faced with these powerful arguments, Mr. Shanks took the view that attack was the best form of defence. He submitted that the question of Mr. Jayawardane's "normal retiring age" was an issue of fact for the Tribunal. The critical question was: what was the age at which employees of the Appellant who were Executive Officers on Band 6 could reasonably be expected to retire? The Tribunal, he submitted, clearly posed themselves that question and answered it. Since it was an issue of fact, that was the end of the matter.
30. Mr Shanks also pointed to the phraseology in the handbook, notably the phrase "you cannot be required to leave before 62" and argued that on that basis it was hard to see how the Tribunal could have come to any other decision than that which it reached.
31. Mr Shanks also argued that questions of contractual age, and statistical evidence of actual retiring age were matters of evidence from which the Tribunal could properly infer what the normal retirement age was. There were, he submitted, no rules of law as to the approach to be taken. Where, he submitted, an employer had expressly stated to employees what the position was, the contract and the statistics would have a limited role. In this context he relied on an extract from the speech of Lord Diplock in Hughes -v DHSS [1985] ICR 419 at 430.

Analysis

32. We have come to the clear conclusion that Mr. Carr's primary submission is unanswerable, and that the Tribunal plainly failed to follow the guidance contained in the speech of Lord Fraser in Waite, which it had cited. Lord Fraser rejected the view that the contractual age conclusively fixed the normal retirement age. However we look at it, that is the finding made by the Tribunal in the first sentence of paragraph 15 of the reasons. The Tribunal's use of the phrase "the contractual retiring age and therefore the normal retiring age" can only be construed as a clear misdirection in law, sufficient of itself to vitiate the Tribunal's conclusion.
33. In fairness to the Tribunal, it may have been that it was confused by the language used by Lord Diplock in DHSS v Hughes (to which we refer in more detail below) and by the fact that it recorded Mr. Philip Coppel (who appeared for the Appellant below and whom the Tribunal misidentifies) as submitting that "the contractual age and hence the normal retiring age is 60" .
34. Had the Tribunal found 60 to be the contractual retiring age (and we think there is force in the criticism of the Tribunal's failure to take into account the paragraph in the Statement for New Recruits set out in paragraph 8 of this judgment) that would not necessarily have been the end of the matter. The Tribunal would then have needed to examine any evidence available to rebut the presumption that the contractual retiring age was the normal retiring age for employee's of Mr. Jayawardane's grade. In that context, statistics as to the number of employees who stayed beyond 60 would be relevant. No doubt because of the way it approached the matter, the Tribunal felt able to accept Mr. Shanks' submission (as recorded) that statistics were totally irrelevant. That, however, in our judgment was plainly wrong. Statistics were relevant. The quality of the statistics, and how informative they were are, of course, matters of evidence for the Tribunal. It did not, however, evaluate or attempt to evaluate the statistics: it merely deemed them irrelevant.

The decision of the House of Lords in Hughes v DHSS (Hughes) [1985] ICR 34

35. Hughes was a case in which three former civil servants had been compulsorily retired in 1982 at ages between sixty and sixty five. They brought claims of unfair dismissal. The relevant government departments submitted that the claims were precluded by what is now ERA section 109. Two of the claimants had transferred to the Civil Service from Local Authority employment in 1948 on the basis that in accordance with the Civil Service Pay and Conditions of Service Code, their established service, although terminable at the age of sixty, would normally be allowed to continue until the age of sixty five, subject to continued efficiency. That remained the position until 3 June 1981 when a circular announced a change of policy whereby employees in their grade would, subject to specified exceptions, be retired at the age of sixty one from 1 April 1982 and at the age of sixty from 1 April 1983. By letter of 28 September 1981, Mr Hughes was given notice of retirement on 31 March 1982 when he was just over sixty one years of age.
36. A second applicant named Coy was given notice of retirement on 2 May 1982 when he was also sixty one. In the case of Hughes and Coy, industrial tribunals held that they had been unfairly dismissed. However, on appeal by the department, the EAT held that the Tribunal had had no jurisdiction to entertain their claims.
37. There was a third claimant, Jarnell, who had joined the Civil Service in 1955, whose conditions of service after he became established were those contained in the Civil Service Code. In November 1974 his department had published a bulletin intimating that it had been agreed with his trade union that members of his grade would have a normal retirement age of sixty five. In March and August 1981 further bulletins, which had not been agreed with the trade union, intimated that the age limit for retirement would be reduced from sixty five to sixty three. In April 1982, the day before his sixty first birthday, Jarnell was given notice of retirement. In his case, the Industrial Tribunal held that his "normal retiring age" was sixty and dismissed his complaint. However the EAT allowed his appeal and remitted the case to the Industrial Tribunal for a rehearing on the issue of jurisdiction.
38. The Court of Appeal (by a majority) allowed the appeals of Hughes and Coy, and dismissed an appeal by the Department in the case of Jarnell. The House of Lords allowed the appeals of the respective departments in all three cases. At [1985] ICR 419, 424 Lord Diplock distinguished all three cases from Waite He said this:

"All three cases differ from (Waite)…. where the relevant term of the employment as respects retirement were, throughout the period of his employment by the department, governed by the provisions of the Civil Service Pay and Conditions of Service code ("the primary code") itself. These provisions were authoritatively construed by my noble and learned friend Lord Fraser of Tullybelton, as making the minimum age under the terms of his employment in Crown employment at which a civil servant might retire of his own wish or be compelled to retire by the head of his department, the contractual retirement age and thus the "normal retiring age" within the meaning of (the Act). This was aged 60. Lord Fraser's speech was concurred in by all the other members of the house.

In contrast to the Waite case, the terms of their employment as respects retirement of the three Appellants to the instant appeals had been governed by rules made from time to time by the departments by which they were employed. The names borne by these departments have been changed from time to time during the period of the Appellants' employment by them. Rules made by the DHSS and its predecessors have been described as "circulars"; those made by the DOE and its predecessors have been described as "bulletins". These circulars and bulletins were issued under the discretionary power, conferred upon departments by paragraph (iii) of the Introduction to the primary code, 'to make rules or regulations to give instructions for controlling the conduct of their establishments and defining the conditions of service of their staff'. This departmental discretion to make rules or regulations or to give instructions is, however, subject to the limitation that it must be exercised "consistently with the rules consolidated in (the primary) code." "

39. Having cited at length from the speech of Lord Fraser of Tullybelton in Waite, Lord Diplock expressed himself as follows (at 1985] ICR 419 at 430

"My Lords, the Court of Appeal was also unanimously of the opinion that the contractual retiring age, i.e. the age at which Mr Hughes and Mr Coy could be compelled to retire has been throughout their service in Crown employment the age of 60. No other conclusion is possible in view of those provisions of the Primary Code which I have cited earlier. But there is left to the head of each government department a discretion to permit a civil servant employed in his department to postpone the date of his retirement until he retains some higher age. Where as a matter of administrative policy a department decides that for the time being it is in the interests of departmental efficiency that a particular category of employees should, subject to continuing health and efficiency, be permitted if they so wish to remain in the employment of the department until they attain some specified age higher than 60, and such decision if communicated to employees in that category in a departmental circular issued pursuant to paragraph (iii) of the introduction to the primary code, employees in that category have a reasonable expectation that the higher age so specified has replaced the age of 60 as their "normal retiring age", and the presumption of which Lord Fraser speaks in the Waite case in favour of the contractual retiring age of 60 as constituting the normal retiring age of employees in that category (whatever the "position" each may hold) is rebutted.

"But this remains the case only so long as the departmental circular announcing that administrative policy to the employees affected by it remains in force. Administrative policies may change with changing circumstances, including changes in the political complexion of governments. The liberty to make such changes is something that is inherent in our constitutional form of government. When a change in administrative policy takes place and is communicated in a departmental circular to, among others, those employees in the category whose age at which they would be compulsorily retired was stated in a previous circular to be a higher age than 60 years, any reasonable expectations that may have been aroused in them by any previous circular are destroyed and are replaced by such other reasonable expectations as to the earliest state at which they can be compelled to retire if the administrative policy announcing the new circular is applied to them."

The relevant departmental circular that was in force at the dates when Mr. Hughes and Mr. Coy respectively were required to retire was D.76/81 issued on 3.6.81. Thereafter any reasonable expectations that they held as to what constituted the normal age of retirement of employees of the DHSS in their respective positions of SEO and HEO was the age resulting from the application to them of the policy announced in D.76/81. The dates on which the notices of termination of employment given to each of them expired were strictly in accordance with that policy.

40. In our judgment, nothing in this case derogates or was intended to derogate from Lord Fraser's speech in Waite, and the proper approach he laid down to what is now ERA section 109. Lord Diplock's speech makes it clear that for the three individuals whose cases were under consideration by the House of Lords in Hughes, the reasonable expectation each had as to what constituted the normal age of retirement for employees of the DHSS was governed by Departmental policy as expressed from time to time by means of departmental circulars. In each case, the terms of the latest circular were entirely inconsistent with the "normal retiring age" argued for by the individuals.
41. In the instant case, the question for the Tribunal was whether or not Mr. Jayawardane had a reasonable expectation of having a normal retirement age of 62 based on the documentation we have set out in paragraphs 9,10, 11 and 15 of this judgment and any other admissible evidence. Mr. Jayawardane was employed on the Civil Service Terms and Conditions of Employment. The fact that the practice of permitting employees to remain in employment up to the age of 62 years had been in force "for some years prior to August 1999", as the Appellant accepted, may well be evidence in support of that reasonable expectation, but it is no more than that. It is in no sense determinative of it, nor does Hughes suggest otherwise.
42. However, as we have already made clear, the Tribunal could only properly approach the question by deciding first what Mr. Jayawardane's contractual retiring age was. If it was 60, the question of reasonable expectation of a normal retiring age of 62 would then arise. If 62 was the contractual retiring age, the question of reasonable expectation was irrelevant. In our judgment it was not permissible, as the Tribunal appears to have done, to use the concept of "reasonable expectation" as a means of ascertaining the contractual retiring age.
43. Accordingly, we do not think that Hughes assists Mr. Shanks.

Outcome

44. The appeal must plainly be allowed. For the reasons we have already given, it is not possible for us to substitute our own view of either Mr Jayawardane's contractual retiring age or his "normal retiring age" (if it is different) . Both issues seem to us questions of fact to be decided on the available evidence. All we can do is to set aside the Tribunal's Decision and direct that the matter be reheard by a fresh Tribunal.
45. We can, however, we think, properly suggest that the Tribunal approaches the issue in the manner directed by Lord Fraser of Tullybelton in Waite, which seems to us to involve the Tribunal answering the following questions:-

(1) Is there a contractual retiring age, applicable to all or nearly all the employees holding the position Mr Jayawardane holds?

(2) If so, what is it?

(3) If there is a contractual retiring age, is there any evidence to rebut the presumption that the contractual retiring age is also the normal retiring age for Grade 6 employees in Mr. Jayawardane's position? In particular, is there evidence that there is in practice some higher age at which employees holding the position are regularly retired and which they have reasonably come to regard as their normal retiring age?

(4) If so, what is it?

46. On the facts of this particular case, we do not think we need address the hypothesis of what a Tribunal should do if it were to find that there was no contractual retiring age. Neither party has submitted to us that there is no contractual retiring date. The issue is whether or not it and the normal retiring age are the same.
47. In the light of the somewhat undignified last minute scramble in relation to written evidence before the Tribunal, the Chairman of the Tribunal to whom the case is allocated may well think it appropriate to have an early directions appointment in the case to ensure that all relevant documentary evidence is assembled, and that statements from appropriate persons are forthcoming.

Footnote

48. Before parting from the case, we wish to make two further points. The Tribunal identifies the following issue of policy in paragraph 10 of its reasons, when discussing an employee's reasonable expectation of continuing in employment after the contractual retiring age: -

Social policy concerning retirement would not be served if the (Appellant) could avoid unfair dismissal by dismissing at age 60. Fair treatment of the employees requires (Mr. Jayawardane) to have the right to have the process undertaken by the (Appellant) in deciding whether to allow (Mr. Jayawardane) to stay on until 62 to be reviewed. To find otherwise would enable (the Appellant) to proceed in an arbitrary fashion as to whether or not they permitted a particular employee to stay on after the age of 60 without fear of having to substantiate fairness in the way in which they made that decision. Social policy would suggest that a Tribunal should be able to investigate procedures operated by the (Appellant) the outcome of which may or may not entitle an individual to stay after 60

49. The extent to which these considerations influenced the Tribunal's decision in this case is not clear to us, and Mr. Shanks did not seek to rely on them. Whilst we fully understand the point which the Tribunal is making, and whilst every Tribunal has a duty to read and give effect to legislation in a way which is compatible with Convention rights under section 3 of the Human Rights Act 1998, it has to be said that issues of policy are for Parliament, which has clearly decided, in section ERA 109 that the right to apply to a Tribunal for unfair dismissal is not to apply to employees who have reached 65, or their normal retiring age (if earlier). The task of Tribunals is to ascertain, on the facts of the individual case, what the normal retirement age for the particular individual is. That task is carried out by following the guidance laid down by Lord Fraser in Waite. It does not seem to us, with respect, that in the absence of any ambiguity in ERA section 109, policy considerations have any part to play.
50. Secondly, however, we feel constrained to say that, in our judgment, the Appellant in the instant case is in large measure the author of its own confusion, not merely in the manner in which its case was presented to the Tribunal, but in the language of its Handbook. It should not be beyond the wit of departmental draftsmen to produce documentation which is clear, unambiguous and determinative, and we therefore very much hope that whatever the ultimate outcome of this case (as to which we express no opinion whatsoever) the Appellant will both review the language of its handbook and other departmental documents and rationalise them, so that the position is clear to both employer and employee alike.
51. For all these reasons, the appeal will be allowed; the Tribunal's decision will be set aside and the matter will be remitted to a fresh Tribunal to be considered afresh.