United Kingdom Employment Appeal Tribunal

“(2)     The employee shall be regarded as unfairly dismissed if, and only if, there has been a failure on the part of the employer to comply with an obligation imposed on him by any of the following provisions of Schedule 6 to the 2006 Regulations—

(a)     paragraph 4 (notification of retirement, if not already given under paragraph 2),

(b)       paragraphs 6 and 7 (duty to consider employee's request not to be retired),

(c)     paragraph 8 (duty to consider appeal against decision to refuse request not to be retired).”

Schedule 6 to the 2006 Regulations, as there referred to, set out the procedure to be followed by an employer as regards notifying employees of an intention to retire them and of their right to request an extension.  We need not set it out in full.  The relevant obligations in the present case are those applying where an employee has requested an extension.  Paras. 6-9 read (so far as material to this appeal):

LIABILITY

“29. On the facts, we have found both Mr Lilley and Mr Bolam acted on the basis that there was no alternative other than the claimant being retired at 65 no matter what he had to say.  The meetings with Mr Lilley and the appeal with Mr Bolam were therefore meaningless formalities which did not in any real sense involve the employer giving consideration to the Claimant’s request.

30.   The effect of the regulations is that a discretion is vested in the employer to decide the request and, if it so decides, to refuse it solely with regard to its own interest, but before doing so, it must meet with the employee with an open mind so that the substance of the employee’s representations can be considered in a genuine sense.  For representations to be considered genuinely, it is necessary that they can potentially have some effect on the outcome.  That did not happen here.”

The reference to earlier findings is to paras. 8-12 of the Reasons, which cover the meeting between the Claimant and Mr Lilley, and to para. 14, which covers the appeal meeting with Mr Bolam.  We need not set these out in full.  The evidential position about the second meeting with Mr Lilley was rather surprising, because on the Claimant’s evidence there had in fact been substantial discussion of possible options for an extension, whereas it was Mr Lilley who insisted – against the Respondent’s interest – that he did nothing of the kind and that (as recorded at para. 8 of the Reasons):

“… as far as he was concerned the company’s policy had to be applied and there were no exceptions to this, and that the meeting was a formality and there was nothing that the Claimant could either say or do to change the outcome which was pre-determined by the policy and by what he (Mr Lilley) had been told before and by HR, namely that the Claimant would be retired when he reached the age of 65, no matter what.”

The Tribunal explicitly found at para. 10 of the Reasons that it preferred Mr Lilley’s evidence about that.  As for Mr Bolam, it found, at para. 14:

“Mr Bolam told us very clearly that he also had decided before his meeting with the Claimant that the Claimant’s request to be allowed to carry on working beyond his 65^th birthday was to be refused.  He agreed (in response to a question put by the Tribunal) that the matter was a “done deal”, that “the policy was the policy” and that he had already decided that the policy would apply rigidly before the appeal started.  The appeal was a meaningless formality.  There was nothing that the Claimant could say or do at the appeal to overturn the decision which had been dictated by the policy that retirement took place at age 65.”

“It is clear that the employer does not have to give reasons for denying the employees request to continue working.  This, together with the fact that the requirement found in the draft regulations that employers must consider employees requests “in good faith” does not appear in the final version, effectively gives the employers the green light to turn the whole retirement procedure into a charade if they so wish.”

It held that that passage did not represent the law.  It said, at para. 28:

“We accept that the wording in the Regulations in paragraph 6, 7 and 8 suggests that a summary process is permissible and that no reasoned decision has to be issued in the case of a refusal.  However, we do not find that a completely sham process or a mere charade complies with the letter or the spirit of the legislation.  Even though the express words “in good faith” apparently were deleted from an earlier version of the regulations, that does not in our view mean that a sham or fraudulent process is permissible, because it is implicit without the necessity for express wording that any statutory obligation must be performed in good faith and genuinely.”

“… wrongly created a requirement that the duty to consider a request to work beyond retirement age (“the duty to consider”) must be exercised ‘in good faith’”.

We do not accept that submission.  In our view the Tribunal stated the law entirely accurately in para. 28 of the Reasons.  A duty to “consider” a request necessarily connotes an obligation that the person on whom the duty lies considers it in good faith, in the sense that he genuinely considers whether it should be accepted.  It would indeed, as the Tribunal says, be contrary to both the letter and spirit of the legislation if it was enough for an employer simply to sit through the meeting with a closed mind as the result of a pre-determination of the outcome. 

QUANTUM

“The Respondent had no problems with the Claimant’s work performance nor with his sickness record and there is no evidence of any doubts on its part as to the Claimant’s ability to do his work.  None of these matters were given any consideration because of the unthinking application of the Respondent’s blanket policy.  The Respondent has not adduced any evidence before us suggest that had it given the Claimant’s request due consideration, that it would have concluded that the Claimant had to go anyway, or that it would have possibly offered him only part time work.  There is simply insufficient evidence before us to show that it is appropriate to apply a Polkey reduction.”

It is relevant also to note that in a postscript to the written Reasons the Tribunal recorded that when it had delivered its oral judgment and reasons Mr Crighton complained that he had not had an opportunity to cross-examine on remedy.  It rebutted that complaint, saying that the case had been explicitly listed to consider both liability and remedy and that the Claimant’s evidence-in-chief, as supplemented by questions from the Tribunal itself, had clearly covered the question of remedy.  It stated, at para. 35 of the Reasons:

“Mr Crighton in our view had every opportunity to cross-examine and indeed to make submissions on quantum had he so wished.”

Thus the Respondent neither adduced any evidence about what the outcome would have been if Mr Lilley or Mr Bolam had understood that they had a discretion to make exceptions to the Respondent’s policy, nor did it make any submissions about that question.