THE DORMERS WELLS INFANT SCHOOL v MR M GILL [1999] UKEAT 596_97_1607

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 596_97_1607Case No Appeal No. EAT/596/97Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE DORMERS WELLS INFANT SCHOOLAPPELLANTMR M GILLRESPONDENT
Before
His Honour Judge Peter Clark Mr E HammondDate 16 July 1999
[1]APPEARANCES For the Appellants MR M O'CONNOR The Legal Protection Group Ltd Marshall's Court Marshall's Road Sutton Surrey SM1 4DU For the Respondent MR A FREER Legal Dept GMB 22-24 Worple Road London SW19 4DD JUDGE PETER CLARK : This appeal (EAT/596/97) arises in the following circumstances. The Applicant, Mr Gill, who was born on 21 January 1931, commenced employment at Dormers Wells Infant School as a maintenance officer on a date which is uncertain. In his Originating Application he mentioned two dates, 1 November 1992 and 1 February 1994; the Notice of Appearance gives the date as 1 March 1994. The Employment Tribunal does not identify the date in its original decision with Extended Reasons dated 4 April 1997, and finds it to be 1 November 1993 in a review decision dated 20 February 1998. That may not matter because it was common ground on the pleadings that the employment was summarily terminated by the Respondent Governors of the school more than two years later on 4 June 1996. Again, there is no finding as to the effective date of termination ("EDT") in the Tribunal's original decision; it is recorded, perhaps inaccurately, as 14 June 1996 in the review decision. At all events it is accepted on all sides that at the date of dismissal the Applicant was aged over 65 years.[2]Mr Freer, appearing on behalf of the Applicant in this appeal, has sought to emphasise to us the importance of this case to the Applicant in view of the allegations, denied by him, which led to his summary dismissal. That may be so. However the merits of the case are wholly immaterial to the issue arising in this appeal.[3]Following dismissal the Applicant presented an Originating Application to the Employment Tribunal on 23 July 1996, complaining of unfair dismissal. In response, by their Notice of Appearance, the Respondents took the point that the Tribunal had no jurisdiction to entertain the Applicant's complaint of unfair dismissal on the ground that he was over the age of 65 at the EDT. They relied upon the provisions of Section 64(1)(b) of the Employment Protection (Consolidation) Act 1978, now contained in Section 109(1) of the Employment Rights Act 1996.[4]Section 109 provides:
"(1) Section 94 [the right not to be unfairly dismissed] 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."
[5]That preliminary issue came on for hearing before an Employment Tribunal sitting at London (North) under the chairmanship of Mr Lincoln Crawford on 14 January 1997. By their original decision dated 4 April 1997 the Tribunal found that they had jurisdiction to entertain the Applicant's complaint of unfair dismissal. Against that decision the Respondent brought the present appeal (EAT/596/97) by a Notice dated 8 May 1997.[6]However, on the same date on which the Tribunal promulgated its original decision, the Chairman promulgated an order referring the original decision for review of its own motion on the grounds that at the original hearing the Tribunal had not been referred to the EAT decision in Dixon v London Production Tools Ltd [1980] IRLR 385.[7]The review hearing took place on 3 December 1997 before the original Tribunal members. Both parties were represented. By a decision dated 20 February 1998 (the review decision) the Tribunal revoked the original decision and substituted a declaration that the Tribunal had no jurisdiction to entertain the complaint on the grounds that the Applicant had attained the age of 65 at the EDT.[8]Against the review decision the Applicant appealed (EAT/545/98; the second appeal).[9]It appears that both appeals were due to be heard by a division of the EAT presided over by Lord Johnston on 14 October 1998. However, due to certain procedural misunderstandings the Respondent's representative was unaware that the first appeal (misdescribed in the heading to the judgment given by Lord Johnston on that day as EAT/596/98) was due to be heard. Accordingly the Court proceeded to hear only the second appeal (EAT/545/98).[10]That appeal was allowed, the EAT holding that the case of Dixon was nothing to the point, and the review decision was set aside. That left the original decision extant and it was further directed that the first appeal be listed for preliminary hearing.[11]The preliminary hearing took place before a division presided over by Judge Wilson on 28 January 1999. The first appeal was permitted to proceed to a full hearing. That is the matter with which we are concerned.[12]We should mention a procedural point at this stage. Prior to the hearing before Judge Wilson the Respondent had lodged amended grounds of appeal in the first appeal under cover of a letter to the Registrar dated 24 December 1998. It is quite clear that those amended grounds and that letter were with the papers before Judge Wilson's Tribunal on 28 January 1999. Although no formal order granting leave to amend appears to have been made on that occasion, we are quire satisfied that the matter was allowed to proceed on the basis of the amended grounds and as such we shall formally allow leave to amend notwithstanding Mr Freer's objections. The original decision[13]The Tribunal's Extended Reasons are contained in just two paragraphs. In the first, the statutory provision is incorrectly described thus:
"The issue raised in this preliminary hearing is that because Mr Gill is now over 65 he is disqualified under the provisions of section 94 of the Employment Rights Act 1996. It is not disputed that Mr Gill is over 65 nor is it disputed that under the provisions of the Employment Rights Act to be found in section 109 that where an Applicant is over the age of 65 he is not covered by the rights set out in section 94."
[14]That formulation makes no reference to the concept of a normal retiring age different from age 65, as provided for in Section 109.[15]In paragraph 2 the Tribunal appear to formulate the issue before them as one of fact, namely whether the Applicant was led to believe by the school that he would be allowed to work beyond his retirement age , that is, until 1999 when his partner, Ms McGill, the Deputy Head of the school herself retired. That factual issue, disputed by the Head, Miss Best, was resolved in favour of the Applicant. The Tribunal further found that there were four people working at the school who had passed the age of 65. In these circumstances the Tribunal held that it had jurisdiction to entertain the Applicant's complaint of unfair dismissal. Normal Retiring Age[16]In answering the question whether an applicant is excluded from bringing a complaint of unfair dismissal under Section 109 the Tribunal must;(i) identify the undertaking in which the Applicant was employed;(ii) identify which employees in that undertaking held the position which the employee held;(iii) establish what, if any, was the normal retiring age for persons holding that position. Brooks v British Telecommunications Plc [1991] IRLR 4 (EAT).[17]The first stage causes no difficulty in this case. The undertaking was the school. It is at the second stage that the problem begins to arise. The word "position" is defined in Section 235(1) of the Employment Rights Act as follows:
" 'position', in relation to an employee, means the following matters taken as whole – (a) his status as an employee, (b) the nature of his work, and (c) his terms and conditions of employment, "
[18]In Waite v GCHQ [1983] ICR 653 and Hughes v DHSS [1985] ICR 419, the House of Lords considered the question of what was the appropriate category of employees holding the same position as the Applicant for the purpose of determining what, if any, normal retiring age applied to that group of employees.[19]Both Waite and Hughes concerned civil servants. However in Age Concern Scotland v Hines [1983] IRLR 477, decided by the Scottish EAT after the House of Lords judgment in Waite , it was held that where the dismissed employee is unique within the undertaking, it is not possible to have a "group" of one, and accordingly there is no normal retiring age in such a case. It is necessary to fall back on the pensionable age of 65 (Section 109(1)(b)). That approach is also to be found in the later Court of Appeal decision in Patel v Nagesan [1995] IRLR 370.[20]Assuming that the Applicant is able to show that there are other employees holding the same position as him, the effect of the authorities is that the contractual retirement age, if any, raises a rebuttable presumption that that is the normal retiring age.[21]The test is what is the age which employee of all ages in the Applicant's position could reasonably regard as the normal retiring age applicable to the group: Brooks v British Telecommunications Plc [1992] IRLR 66 (CA).[22]The fact that individuals within the group retire at different ages will not necessarily mean that there is no normal retiring age. However there must be a specific age at which those within the group retire. Otherwise, there will be no normal retiring age and the pensionable age of 65 will apply. The Appeal[23]The short point taken by Mr O'Connor in the present appeal is that the Tribunal has failed to ask itself what (if any) was the normal retiring age for the position which the Applicant held.[24]If there was no normal retiring age, the claim fails because the Applicant was over 65 at the EDT (Section 109(1)(b)): if there was a normal retiring age, was the Applicant above or below that age at the EDT? Only in the latter event could the Applicant overcome the Section 109 bar.[25]Mr Freer submits that the Applicant was the only maintenance officer; he was told that he could retire at the same time as his partner; that was his normal retiring age. However, he accepts that such a submission is inconsistent with the ratio in Age Concern Scotland v Hines and the approach of the Court of Appeal in Patel v Nagesan . He invites us to rule that the decision in Hines is wrong. We decline to do so in the light of Patel v Nagesan .[26]Alternatively, he concedes that if the Applicant was a member of a group of employees holding similar positions, the Tribunal made no finding as to the normal retiring age (if any) of members of that group. That is a matter on which further findings would be necessary on remission. Conclusion[27]It is perfectly clear to us that the Tribunal failed to direct themselves correctly as to the law. They appear to have considered that it is sufficient that a representation was made to the Applicant that he would remain in employment until his partner retired in 1999 and/or the fact that other employees worked beyond the age of 65 in order to found the Tribunal's jurisdiction. That is not the question. There has been no attempt by the Tribunal to answer the second and third questions which we identified earlier. The appeal must be allowed.[28]We have considered whether we are able to resolve the jurisdictional question under Section 109 ourselves. This is the fifth hearing in this case. Reluctantly, we have concluded that the lack of material findings in the original decision precludes us from taking that course.[29]In these circumstances we shall remit the case to a fresh Employment Tribunal for determination of the Section 109 question.[30]On remission, the following questions of fact and law will arise:(1) did the Applicant hold a unique position at the school? If so, following Hines , no question of a normal retiring age arises and the Applicant, being over the age of 65 at the EDT, cannot bring a claim of unfair dismissal.(2) alternatively, was he one of a number of employees at the school holding the same position, as defined in Section 235(1)? (the group).(3) if so, was there a contractual retirement age of 65 (or some other age) applicable to all or nearly all the employees in the group?(4) if so, there is a presumption that that is the normal retiring age for the group. Has that presumption been rebutted by evidence that there is in practice some different age at which employees in the group are regularly retired and which they have reasonably come to regard as their normal retiring age?[31]It is only if the Tribunal finds that there was a normal retiring age applicable to a group holding the same position to which the Applicant belonged, higher than the age of the Applicant at the EDT of his contract, that the Tribunal will have jurisdiction to entertain his complaint of unfair dismissal.