MR S DURING v WALTHAM FOREST ENERGY SERVICES LIMITED [1999] UKEAT 1145_98_0610

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1145_98_0610Case No Appeal No. EAT/1145/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S DURINGAPPELLANTWALTHAM FOREST ENERGY SERVICES LIMITEDRESPONDENT
Before
His Honour Judge J HicksLord Davies of CoityDate 6 October 1999
[1]APPEARANCES For the Appellant MR RUSTOM TATA (Solicitor) Messrs Donne Mileham & Haddock Solicitors 100 Queen's Road Brighton East Sussex BN1 3HB For the Respondents MR ALEX LOCK (of Counsel) SBJ Employment & Safety Services Ltd 3rd Floor 4 Copthall House Station Square Coventry CV1 2FL JUDGE HICKS QC : The appellant, Mr During, was employed by the respondent employers, Waltham Forest Energy Services Limited, having been engaged on 2nd March 1992. He reached the age of 60 and the respondents took the view that that was his normal retirement age and that they were therefore entitled to bring his contract of employment to an end without having to justify the fairness of doing so, because s.109(1) of the Employment Rights Act 1996 provides:
"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."
The employers took the view that this was a case within s.109(1)(a), namely that there was a normal retiring age for an employee holding Mr During's position. It was 60. He had attained it and therefore unfair dismissal section did not apply.[2]Mr During complained of unfair dismissal. The tribunal dismissed that complaint on the ground, to put it briefly, that it accepted the employer's case. Mr During now appeals.[3]The first and principal ground argued by Mr Tata on his behalf is that the tribunal did not in its reasons address the issues which arise under s.109(1), namely, first: is there a normal retiring age? If not, under paragraph (b) the age of 65, for which Mr During was contending, would apply.[4]The answer to that is that although indeed the tribunal did not spell out the process of investigation in that order the reason why it did not do so was because there was no dispute before it on any matter except one, namely what was Mr During's contractual provision as to retirement age. The fact that that was the only real issue is quite apparent from two sources. The first is the Originating Application lodged by Mr During, which reads in the relevant passage as follows:
"My statement of terms and conditions given when my employment commenced states that my contractual retirement age is 65."
He then goes on to deal with what happened later but resumes, for present purposes, with this sentence:
"As my contractual retirement age remained 65 my employer cannot operate their new normal retirement age which is in breach of my contract of employment."
He then refers to a case decided in this Appeal Tribunal - Bratko v Beloit Walmsley Ltd [1996] ICR 76 . It is quite apparent, therefore, that his Originating Application turned crucially on his allegation that he had a contractual retirement age of 65 and that on familiar authorities there would be a presumption that that was also his normal retirement age, but it is equally clear - and this is the important point in addressing Mr Tata's argument - it is equally clear that he accepted that but for that contractual provision the new normal retirement age, which it was common ground was 60, would have applied.[5]In the tribunal's reasons in paragraph 1 they set out what they describe as the issues between the parties. Having set out a summary of the respondent employer's submissions they set out the submissions for the applicant, Mr During. They say:
"When the Applicant was engaged by the Respondent in 1992, at the age of 55 years, he considered that he was placed under a contract which had a retirement age of 65 … Notwithstanding discussions regarding growing numbers of staff joining the Company, which created a retirement age of 60 years, the Applicant did not consider that the terms of this original contract were being varied as to the retirement age. … The Applicant's contractual retirement age was 65 years and whatever the Company's retirement age for new employees had become, there had been no agreement with the Applicant to vary his contract relative to retirement."
So the situation facing the tribunal was that although no doubt, in terms of an academic exposition of the law, it would have been more elegant to have set out the terms of s.109 and spell out how that related to the points before them, in truth and in substance everybody knew that the only real issue on which the applicant could succeed was to show that he had a contract containing a term for retirement at 65 years and, having concluded that issue against him; the tribunal, naturally and without, in our view, any error of law, simply fell back on what was absolutely common ground between the parties, that the normal retirement age for persons in the position held by him was 60 and that that was therefore his normal retirement age.[6]We therefore see no error of law on the part of the tribunal in the respect submitted by Mr Tata of failing to spell out every step that can potentially arise under s.109 when, as we have explained, for all practical purposes and indeed for all legal purposes, only one live issue was before them. The tribunal's conclusion on that issue was of course a matter of fact and evidence for them and Mr Tata does not submit that he can ask us to interfere with that, because the tribunal display no error of law in the treatment of the evidence and in the conclusions which they reach on it. It is certainly not for us to substitute our conclusion of the facts, even if we had reached one, for theirs.[7]There is one further point raised by Mr Tata, whether separate or subsidiary does not matter, and that is that in the tribunal's findings in paragraph 8 of their reasons, the tribunal having in findings (i), (ii) (iii) and (iv) rejected Mr During's factual case on the contract of employment then in (v):
"finds the Applicant normal retirement age was 60 as there were many documents in support of that , such as the pension documents;"
For the reasons we have given the words "as there were many documents in support of that, such as the pension document" were truly surplusage because there was no real dispute that the normal retirement age, but for the contract point, was 60. But Mr Tata says on the authority of the same Bratko case that pension documents cannot be conclusive as to normal retirement age, because pensionable age and normal retirement age are in principle separable matters.[8]This point, we understand from Mr Lock who represents the respondent and appeared for them below, was indeed canvassed at the hearing below, it being Mr During's case there, as indeed it would have to be in the face of the pensions documents, that although he was consenting to a pension age of 60 he expected to draw his pension before he retired at what he was advancing as the normal retirement age 65. So that matter was canvassed before the tribunal. The reference to the pension documents in the tribunal's decision must, in our view, quite plainly be simply to part of the whole of the evidence before them of some evidential weight, as indeed it would be, because the concept of drawing a pension before one retires, although theoretically possible, is no doubt in practice rather rare and they were entitled to take into account, for what weight they thought it was worth, the fact that pension documents indicated a pensionable age and indeed not only a pensionable age but a normal retirement age of 60.[9]However, as we have indicated, the real answer to this point is that those references are a mere surplusage. There really was no dispute that, but for Mr During's contract point, the normal retirement age for persons in his position was 60 and that was the inevitable conclusion which any tribunal would have had to reach once the contract point as submitted by Mr During was rejected.[10]There is, therefore, in our judgment, no error of law on the part of the tribunal and the appeal must be dismissed.