Carter v Parkside Health Authority [1992] UKEAT 690_91_2310

EAT
Carter v Parkside Health Authority
[1992] UKEAT 690_91_2310 · 1992-10-23

HIS HONOUR JUDGE HULL QC : This is the unanimous decision of the Appeal Tribunal.

Dr. Carter is a consultant rheumatologist who was employed in that capacity by St Mary's Hospital, Paddington, from 1971 until she was required to resign; her employment ceased on 16 May 1991. She had reached her 65th birthday on 1 March 1991. That was her contractual retirement age.She complained to the Industrial Tribunal sitting at London South that she had been unfairly dismissed. She said in her application that (as was conceded) it had long been the practice at St Mary's for consultants to have the option of retiring at the end of the academic year (30 September) following their 65th birthday. The Parkside Health Authority (responsible for St Mary's) had unilaterally changed this practice by insisting that retirement should take place on the consultant's 65th birthday. This decision was taken without consulting with the relevant group of staff, causing the dismissal to be unfair.The Respondent Authority contended that Dr Carter had reached the normal retirement age of 65 before the ending of her employment, and that, accordingly, the Industrial Tribunal had no jurisdiction. By S.64(1) of the Employment Protection (Consolidation) Act 1978, the Applicant's claim was excluded if she
"(b) attained the following age on or before the effective date of termination, that is to say - (i) if in the undertaking in which [she] was employed there was a normal retiring age for an employee holding the position which [she] held ... that normal retiring age; and
(ii) in any other case, the age of sixty-five".The Industrial Tribunal found that as the result of much publicised requirements to reduce overheads in the National Health Service, the Authority changed its policy with regard to retirement in June 1990 following consultation with the Dean of the Medical School, the Chairman of the Clinical Directors and the District General Manager and the Personnel Manager. The new policy was ratified by the 15 Clinical Directors including Dr Rosser, who was head of Dr Carter's department. Dr Carter had been notified orally and in writing in June 1990, with a further letter in August. She had had three meetings with the Chief Executive, Mr Goodwin, and registered a grievance which was the subject of a hearing in February 1991.All the other consultants due to retire in the next few years were advised of the change and Mr Goodwin indicated that there would be no exceptions.It appears that the main, if not the only, complaint made by Dr Carter to the Industrial Tribunal was that the change in policy was unreasonable, in that there had been no consultation. The Tribunal concluded that any duty of consultation had been discharged. It also concluded that at the relevant time, immediately before the effective date of termination of Dr Carter's employment, the normal retirement age of consultants was 65, any reasonable expectations that the old policy would apply having been destroyed by notification of the Authority's policy decision in June 1990. Accordingly, Dr Carter had failed to establish jurisdiction.In her Notice of Appeal to the Employment Appeal Tribunal dated 26 November 1991, Dr Carter complained that the Industrial Tribunal had completely misunderstood the concept of consultation between management and employees affected by decisions. She referred to evidence about the lack of consultation before the decision to change the "retirement date" [not the "normal retirement age"] and said that the decision of the Industrial Tribunal was perverse.It will thus be seen that at the hearing before the Industrial Tribunal and on her appeal, Dr Carter was not challenging the fact that the normal retirement age had been changed: indeed she seems not to have been concerned about the "normal retirement age" in the ordinary sense but about the customary "retirement date". In these circumstances it is not surprising that the Industrial Tribunal gave little or no attention to the question whether the normal retirement age had indeed been altered. Dr Carter's case appears to have been that it was indeed altered, but unfairly.About 9 months after serving the Notice of Appeal it appears to have been decided by Dr Carter's advisers that her case as put forward at the Industrial Tribunal, and in her Notice of Appeal, was misconceived. On 10 September 1992 her representative, the Industrial Relations Officer at the British Medical Association, wrote asking to amend the Notice of Appeal to add the following:"The Industrial Tribunal failed to apply correctly section 64(1)(b)(i) of the Employment Protection (Consolidation) Act 1978 in that it considered only the actual knowledge of the appellant, alternatively, only the actual knowledge of the appellant and (as the tribunal put it) "all other consultant staff due to retire in the next few years" rather than considering what was the reasonable expectation of (as the Act puts it "an employee holding the position which [she] held", a phrase which has been judicially interpreted to mean all the employees in the group holding the position of the appellant, see Waite v Government Communication Headquarters [1983] 653 HL".It will be seen that this put forward a new case which was not, apparently, considered or argued before the Industrial Tribunal, and to which the evidence related only incidentally. The Authority objected to this change of front.At the hearing of the Appeal we allowed the amendment, notwithstanding the objections of the Authority. Mr Griffiths, for the Authority, said that for his part he wished to make a contention of law which had not been addressed to the Industrial Tribunal (we deal with this below) and we allowed this also.Mr Stewart, for Dr Carter, pointed out that the evidence showed only that certain consultants, including the Dean of the Medical School and the 15 Clinical Directors, had been informed of the change. It was true that those informed included Dr Carter and the other consultants due to retire in the next few years but there were about 150 consultants at St Mary's, and there was no evidence that all of them, or even a majority of them, had been notified. If a long established "normal retirement age" were to be altered, then it could only be done by informing all those in Dr Carter's position, ie all the consultants. This could be done by writing to them, or by a properly distributed circular, or even by oral interviews: but there was no evidence of such communication with the consultants severally or as a group.Mr Stewart referred us to the decision of the House of Lords in WAITE v GOVERNMENT COMMUNICATIONS HEADQUARTERS [1983] ICR 653, and in particular to what Lord Fraser said at pages 661 and 662. Having rejected the proposition that the contractual retiring age was necessarily the "normal retirement age" Lord Fraser (with whom all the other Lords agreed) observed at page 662(G,H):
"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..."
Mr Stewart also cited HUGHES v DEPARTMENT OF HEALTH & SOCIAL SECURITY [1985] ICR 419. In that case, Lord Diplock, having read part of the Judgmentof Lord Fraser in WAITE to which we have referred, dealt with the case where the Government, as employer, had introduced, as a matter of administrative policy, a normal retirement age greater than the contractual retiring age of 60 for certain civil servants.

(E) he observed:

"When a change in administrative policy takes place and is communicated in a departmental circular to, among others, those employees in the category ... any reasonable expectations that may have been aroused in them by any previous circular are destroyed".There, of course, Lord Diplock was dealing with the case of a group of civil servants whose expectations about the normal retirement age had been changed by a circular, and whose expectations could be changed again by a further circular: and his observations were based on the facts of that particular case.Mr Stewart referred to BROOKS v BRITISH TELECOMMUNICATIONS PLC [1992] ICR 414 in which Butler-Sloss L.J.

(H) :

"It is open to an employer to change his policy for the normal retiring age, and so long as it does not breach the contractual retiring age such a policy can change overnight. It requires, of course, properly to be communicated to the employees affected before it can have effect, but once communicated, I see no reason why the effect should not be immediate."
We have no doubt that if a long standing policy with regard to the normal retirement age of a particular group of employees is to be changed by the employer, particularly if it is changed "overnight", the change must be made known to the employees affected. This may be brought about by a letter or circular or by consultation; one can think of many ways in which the employees may be made aware of the change. In the case with which we are dealing the Authority was concerned with the small and distinguished group of 150 consultants at St Mary's. There was consultation with the Dean of the Medical School and the Chairman of the Clinical Directors; and the change was "ratified" by the 15 Clinical Directors, all of them consultants and heads of departments. The change most certainly did not come about "overnight".In addition to these consultations, a number of consultants nearing retiring age were informed personally and Dr Carter herself, having been informed, invoked a formal grievance procedure which must have attracted considerable attention from some of her colleagues and the British Medical Association, which represented her.The questions of the existence of a "normal retirement age" other than the contractual retirement age, and its alteration from time to time, must be ones of fact for the Industrial Tribunal. Here, there appears to have been no issue about the normal retirement age and its alteration before the Industrial Tribunal: as we have said, all attention seems to have been focused on the question of the fairness of the change about which (despite the contents of the original Notice of Appeal) we heard nothing. Nonetheless the Industrial Tribunal addressed its minds to the former question. In para 6 of its decision the Tribunal observed:
"We now turn to our conclusions in the matter. We have to consider what would be the reasonable understanding or expectation of employees holding that position at the relevant time. In this context position is defined in Section 153(1) of the Act as meaning her status as an employee, the nature of her work and the terms and conditions of employment. The relevant time was the effective date of termination of the applicant's employment or more logically the point of time immediately before the termination took effect. From the notification of the respondents' policy decision in June 1990 any reasonable expectation that the applicant may have had with regard to the age at which she could expect to retire was destroyed and replaced by such other reasonable expectations as to the earliest date at which she could be compelled to retire if the new policy was applied to her. On the complaint of lack of consultation we find that the respondent at a time of financial crisis still managed to discharge any duty which it owed to the applicant and her fellow consultants in this regard."
In para 7 the Tribunal says:
"We find that at the effective date of termination of her position as a Consultant Rheumatologist the applicant had attained the age of 65 years which was both the contractual and the normal retiring age for a person holding that position. She is therefore unable to establish jurisdiction."
We are of opinion that there was ample material on which the Tribunal was entitled to conclude that the consultants in St Mary's were well aware of the change in policy in, or very shortly after, June 1990. On the material before the Tribunal, we should ourselves have inferred that each and every consultant must have been aware of it by the beginning of 1991 and probably long before. We asked Mr Stewart whether he was in a position to call a single consultant to say that he or she was unaware (at the material time) of the change in policy. Mr Stewart replied that the burden was not on him to prove that some of the consultants were unaware of it. We disagree. We think that it was for Dr Carter to establish that the Industrial Tribunal had jurisdiction to entertain her claim, and this involved showing that the normal retirement age for consultants was more than 65 when her resignation took effect. She took no steps to discharge this burden and in our view the Industrial Tribunal reached the only possible conclusion on the evidence before it. If Dr Carter had seen fit to take the point, and called any evidence about it, the Tribunal would no doubt have devoted time to its elucidation. As it is, we regard their conclusion as the proper one and indeed cannot see how they could have reached any other.As we have said, Mr Griffiths took another point which was not addressed to the Industrial Tribunal. He submitted that the evidence showed that the normal retirement age was and always had been 65. It was true that it had been the practice to allow retirement at the end of the September following each consultant's 65th birthday, but that could not be a "normal retirement age". It would differ for each consultant. Some might have their 65th birthday on September 29th and thus retire aged 65 and 1 day: others might attain 65 on October 1st, and thus retire aged 65 and 364 days. Accordingly, since each retirement age was different, there could be no normal retirement age. Indeed, the 30th September following a particular consultant's 65th birthday was not an "age" at all: it was a date.Mr Griffiths submitted that the whole concept of a normal retirement age was concerned with fairness and equality between the members of a particular group. The concession in the present case could not be said to have anything to do with fairness and equality but was arbitrary, however welcome it might be to the consultants as a body.Mr Griffiths specifically asked us not to decide the case on this basis if we were minded to dismiss the appeal on the grounds advanced in the amended Notice of Appeal. Accordingly, we would only say that it appears to us that his argument on this new point appears to us to be correct and, indeed, compelling; and we would have been prepared to dismiss the Appeal on this ground if he had asked us to do so.