MR M TOURELL v EAT/582/99 PROPERTY ADVISERS TO THE CIVIL ESTATE EAT/1001/00 THE MINISTER FOR THE CABINET OFFICE [2000] UKEAT 582_99_2911

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 582_99_2911Case No Appeal No. EAT/582/99 & EAT/1001/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M TOURELLAPPELLANTEAT/582/99 PROPERTY ADVISERS TO THE CIVIL ESTATE EAT/1001/00 THE MINISTER FOR THE CABINET OFFICERESPONDENTS
Before
His Honour Judge H Wilson Miss C Holroyd Mr A D TuffinDate 29 November 2000
[1]APPEARANCES For the Appellant MS J BROWN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme JUDGE WILSON : This is a preliminary hearing of appeals against two decisions of the Employment Tribunal, the first of which has been reviewed. The first decision was promulgated on 15th March 1999 and was exhaustively reviewed in the Autumn of 1999, in a judgment of over ten pages. The decision was that, in the undertaking in which the applicant was employed, there was a normal retiring age which was 60. That decision was confirmed by the review. Subsequently another hearing took place whose decision which was promulgated on 17th April 2000. That hearing concerned the applicant's complaint of breach of contract by the respondont not notifying the applicant of a right of appeal concerning their decision to allow him to remain in their employment until 31st May 1998 and no longer. The other two allegations, alleging breach of contract and unlawful sex discrimination, were dismissed. This has been the preliminary hearing for the proposed appeals against the decisions last year and the dismissal of the two claims this year. The appellant has been represented by Ms Brown under the services of the ELAAS scheme. So far as the point about retirement is concerned, Ms Brown relies on the decision in Barclays Bank Plc v O'Brien [1994] IRLR 581 . She says that there is an exception here which should have meant that the decision went in favour of the appellant.[2]We have considered the large number of documents which the appellant had put forward in support of his skeleton argument in the light of the documents which were before the tribunal and upon which it based its decision. We note that there were the two preliminary issues before the tribunal in 1999 and that the appellant's contention was that there was no normal retirement age applicable to him. In paragraph 7 of its decision, the tribunal notes that when he began his service there was a retirement age of 65. It goes on to note in paragraph 13 that new rules came into operation in 1988 which established a retirement age of 60, with a discretion to allow staff with short reckonable service and no pension entitlement to continue until 65. There was a further discretion to exceed the 60 age limit in order to meet managerial or management requirements. The maximum age of retention for mobile grades was 60 and the appellant was employed in a mobile grade. The tribunal found in paragraph 16 that the normal age for employees within mobile grades was 60, there being two exceptions to the rule. The first was the short service concession; and the second was where, exceptionally, there were certain grades whose normal retirement age is 65. The appellant came into neither of those exceptions.[3]The Employment Tribunal's decision goes on to deal with various changes to do with the Property Services Agency becoming the Property Holdings Department and subsequently PACE. Then the Tribunal deals particularly with the situation of Mr Turnbull who was kept on for three months after reaching 60 years.[4]The tribunal concluded at paragraph 27 that they were satisfied that the appellant held the position of SPTO with PACE and that, subject to the short service concession, employees who were within that group would and did reasonably regard 60 as their normal retiring age.[5]The tribunal went on to direct themselves, so far as the law is concerned, completely correctly. It referred to the O'Brien case, finding the passage in that case, in Peter Gibson LJ's judgment, of particular assistance. They found that, by applying the test set out in O'Brien , there was a normal retirement age applicable to the appellant and that that normal retirement age was sixty.[6]It seems to us that nothing has been put before us to show that the Employment Tribunal erred, either in its findings of fact, behind which we could not go anyway, or in its application of the statute and case law. Accordingly this appeal would have no chance of success were it to proceed to full argument and it is dismissed.[7]There is the further appeal against the findings that there was no breach of contract over not admitting the appellant to a right of appeal under the hardship procedures and sex discrimination. We turn to the decision which was set out in the decision promulgated in April 2000. The "Hardship Procedures" in question are in the 1988 Rules. They were additional provisions which stated that:
"The arrangements below, apply to officers who were in post at 1 December 1986 and age 50 and over at that date. …"
It then goes on to say what the Hardship Procedures are.[8]It is quite plain that the arrangements apply to a specific category of people. The people in question have to satisfy two qualifications. The first is that they are in post on 1st December 1986 (which is fulfilled by the appellant). The second is that they were aged 50 or over in 1986. That is a qualification not satisfied by the appellant. He was therefore not eligible under the Hardship Procedures. The tribunal found that it was accepted that there was a contractual relationship but that they found against the appellant in respect of his complaint for the following reasons:
"by remaining in the Civil Service without protest after 1988 Rules came to his attention … the applicant affirmed his contractual relationship with the Civil Service including the 1988 Rules; since the applicant's claim is in respect of a breach of contract, it became time-barred so far as proceedings before the civil county courts were concerned six years after 1988; … the claim was not one which at the time of presentation of the applicant's Originating Application related to a matter in respect of which a court in England and Wales would have had jurisdiction to hear and determine …"
Therefore the tribunal concluded that it was not a claim outstanding on the termination of the appellant's employment.[9]We go on to the hardship procedures. The tribunal found in paragraph 52 that it was satisfied that paragraph 10 of those procedures only applied if the conditions in paragraph 9 were satisfied. The tribunal found that that was the position because paragraph 9 itself said that the arrangements applied only to officers in post on 1st December 1986 and aged 50. As the tribunal said, that "is sufficient to dispose of the applicant's point".[10]We turn to the question of sex discrimination. The tribunal considered whether or not the adoption of a policy which provided that there must be no unfair discrimination on the basis of age had become part of the appellant's contract of employment. They reminded themselves that the policy with regard to age differs from those with regard to race, sex and disability, since there is no statutory obligation on the respondent in connection with discrimination based on age. The tribunal concluded in paragraph 55 that the policy with regard to age did not become incorporated in the appellant's contract so as to exclude the hardship or short service provisions and the tribunal set out the reasons why they reached that conclusion.[11]Finally, to deal with sex discrimination, in paragraph 72 the tribunal said that:
"The applicant's contention in this respect is that prior to the introduction of the 1988 Rules both male and female staff in his grade could opt to retire at any time between ages 60 and 65, thereby being able to remain in employment until reaching their respective state retirement ages and thus make arrangements so they could receive both their occupational pension and also a state pension."
There were changes introduced by the 1988 Rules which made a difference to male employees only and that, said the appellant, meant that he was the subject of unlawful sex discrimination. The respondent contended that that argument was misconceived and the tribunal found that the respondent, by having a normal retirement age for all employees, such as the appellant, was treating males and females similarly. They found that there was no discrimination because the appellant was not treated by the employer less favourably than a woman would have been. It was not employer who was subjecting the appellant to the detriment but the State, and therefore that aspect of the claim failed.[12]Again, we can find nothing that has been urged upon us either in argument or in the papers submitted by the appellant, to satisfy us that were this matter to go to full argument the finding of the tribunal concerned breach of contract or sex discrimination would be upset and accordingly we dismiss those appeals as well.[13]The matter will go for hearing to determine the remedies to be awarded as a result of the tribunal's decision about the failure to notify the appellant of his right to appeal.