MR T ZAIDI v AMERICAN UNIVERSITY IN LONDON [2000] UKEAT 1363_99_2601

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 1363_99_2601Case No Appeal No. EAT/1363/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR T ZAIDIAPPELLANTAMERICAN UNIVERSITY IN LONDONRESPONDENT
Before
MR COMMISSIONER HOWELL QCMR D CHADWICKMS B SWITZERDate 26 January 2000
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON & PROFESSOR MAUGHAN-PAWSEY (Representative) MR COMMISSIONER HOWELL QC : In this appeal, which comes before us today for a preliminary hearing, Mr Tahir Zaidi, a gentleman who is now aged 80 (having been born on 9th June 1919) seeks to pursue an appeal against the decision of the London (North) Employment Tribunal embodied in extended reasons sent to the parties on 1st July 1999 at pages 5 to 6 of the appeal file, after a hearing which took place on 11th June 1999. The proceedings which came before the tribunal were by way of a complaint by Mr Zaidi against an organisation called the American University in London, which is an educational organisation providing various kinds of courses, in particular for students from the Middle and Far East and also, as Mr Zaidi informs us, the United States of America and elsewhere.[2]The complaint made against this organisation was that Mr Zaidi had been unfairly dismissed, in particular because despite his 15 years experience in the post he had occupied at the University he had been alleged to be unable to operate computer equipment satisfactorily. His contention was that his original terms of engagement had never included this type of duty so that it was unreasonable to expect him to change so as to include that kind of work in his occupation as an administrative assistant. His previous positions with the University, as he told us, had included serving as Vice-Chancellor, Deputy Chief Executive and Director of Academic functions and administration.[3]The complaint to the Employment Tribunal was made by an Originating Application dated 6th February 1999, (though not submitted to the tribunal until 15 March 1999). The complaint was that Mr Zaidi had been unfairly dismissed and the date given for the termination of his employment was 1st February 1999. At that date Mr Zaidi was aged 79 years and a complaint of unfair dismissal could only have been brought by him consistently with section 109 of the Employment Rights Act 1996 if he had managed to establish that in the undertaking in which he was employed there was a normal retiring age for a person holding his position in excess of 65 and indeed in excess of the age of 79, which was his age at the time of the events complained of. Section 109(1)(b) of the Employment Rights Act 1996 provides that in any case where there is not a later normal retiring age identified for an employee holding the complainant's position, the right to bring a complaint for unfair dismissal under section 94 of the same Act does not apply "if on or before the effective date of termination he has attained … the age of sixty-five", as Mr Zaidi plainly had.[4]The tribunal heard evidence on the issue of whether there was a different normal retiring age established for Mr Zaidi's post and concluded that they were not satisfied on the evidence they had heard that that was the case. In their extended reasons they recorded in paragraph 2 (on page 5 of the bundle) that:
"2 The Applicant's evidence was that when he first joined the Respondents the then Chancellor agreed that he would be entitled to remain in post until he was 85. It was a gentleman's agreement. There was no norm for when people retired and he was over 65 at the time of his appointment. As far as the Applicant was concerned the onus of resigning was with him and it could not be varied by the Respondents. The Respondents' present Chancellor Dr Alzubaidi gave evidence confirming that there was no normal retiring age within the organisation and that the Applicant was over 65 at the date of his appointment. He had previously been the Assistant to the former Chancellor now deceased and was not aware of any oral agreement between them."
The 'them' referred to must, I think in that context, be to a supposed oral agreement between Mr Zaidi and the now deceased former Chancellor.[5]The tribunal expressed their findings and conclusions on that evidence in the following terms:
"3. The Tribunal considered first section 109 of the Employment Rights Act 1996 and noted that the normal retiring age, if one existed, should be considered before looking at the subsequent part of the section namely the age of 65. The Tribunal also noted that in the case of Age Concern Scotland v Heinz [1983] IRLR 477 the Tribunal must consider the type of employee rather than the individual employee when looking at what would be the normal retiring age. In the case of Dickson v London Production Tools [1980] IRLR 385, the EAT decided that the age of 65 will apply even if at the time the employee is engaged he or she is already over the age of 65. 4 As the organisation did not have a normal retiring age, relying on the case of Dickson the retiring age must be taken to be 65. Consequently the Applicant could not bring a complaint of unfair dismissal before the Tribunal and his application was therefore dismissed."
[6]Against that decision Mr Zaidi seeks to pursue an appeal on grounds which he has explained to us with the assistance of Professor Maughan-Pawsey, who is a former Law Professor at the same University who has also helpfully addressed us on Mr Zaidi's behalf.[7]Some general criticisms of the way the University has behaved and the way Mr Zaidi was treated have been made by him but we address only the issues on which the tribunal decided the case against the complainant, namely the way in which the requirements of section 109 of the Employment Rights Act 1996 were applied to this case. Professor Maughan-Pawsey submits that there was in this case a special oral contract permitting Mr Zaidi to work until the age of 85 and that in the class of employment applicable to him at the material time, which Professor Maughan-Pawsey defined as "Administrative Assistant", an exception had been allowed by the former Chancellor. This had had the effect of making it the "normal" thing for employees in that class of employment to retire at a much later age than 65: indeed not until the age of 85, which was the age for which Mr Zaidi had contended as being the normal age applicable to him. It was submitted that the tribunal had not assessed the evidence before them correctly and it was asserted that the present Chancellor on whose evidence they had based some reliance had been unaware of the practices of the former Chancellor or the arrangements he had made with Mr Zaidi himself. On that basis, it was submitted that the tribunal had misunderstood the legal implications of the evidence before them and that was the basis on which it was sought to pursue this appeal.[8]We are not satisfied that the grounds put forward on behalf of Mr Zaidi do amount to any arguable ground for allowing this appeal to go forward to a full hearing of the Employment Appeal Tribunal. In particular, we are not satisfied that there is any arguable case for saying that the tribunal erred in any way as a matter of law in the way they decided the case, having regard to the evidence submitted to them at the hearing and recorded by them in their statement of extended reasons. The way they directed themselves about the questions to be considered under section 109 of the Employment Rights Act 1996 and the way they applied the authority of Dickson v London Production Tools appears to us entirely correct and unimpeachable as a matter of law. We consider that having regard to the primary evidence recorded by them, and applying the statutory provision and the authorities, this tribunal reached the only conclusion any reasonable tribunal could have done on the case as the matter was presented to them.[9]For those reasons we have no alternative but to dismiss this appeal which we unanimously do.