MS D M DALY v THE CARIBBEAN GOLDEN AGE ASSOCIATION [2001] UKEAT 1329_00_1910

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1329_00_1910Case No Appeal No. EAT/1329/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS D M DALYAPPELLANTTHE CARIBBEAN GOLDEN AGE ASSOCIATIONRESPONDENT
Before
Her Honour Judge A Wakefield Mrs A Gallico Mr N D WillisDate 19 October 2001
[1]APPEARANCES For the Appellant MR P WHITTINGHAM (Representative) 54 All Saints Road Peterborough Cambs PE1 2QU For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT JUDGE A WAKEFIELD : This is an appeal by Ms Daphne May Daly against a decision of an Employment Tribunal sitting at Leicester by which her application as regards unfair dismissal was dismissed. That decision promulgated on 11 September 2000 followed a hearing on 19 July 2000. What led to that hearing appears to be the following.[2]The Appellant who was born on 30 October 1928 was employed by the Respondent as a care assistant. That employment commenced in July 1996 and came to an end in circumstances which were in dispute on 21 May 1999.[3]The Appellant presented an Originating Application to the Employment Tribunal on 28 May 1999 claiming unfair dismissal, breach of contract, a redundancy payment, rights to written reasons for dismissal, a statement of terms of her contract of employment and other ancillary rights.[4]By a Notice of Appearance the Respondent denied that the Appellant had been dismissed and asserted that she had voluntarily resigned. There was a hearing before the Employment Tribunal, apparently in August 1999, at which it was determined that the Appellant had been unfairly dismissed.[5]At a subsequent hearing the Employment Tribunal awarded the Appellant a total of £4,044 against the Respondent as compensation for unfair dismissal. The Chairman then apparently decided to review the decision of his own volition. This led to the hearing on 19 July 2000. The decision to dismiss the application was then made on the basis of section 109 of the Employment Rights Act 1996 . That section, as relevant to this appeal, reads as follows:
"(1) Section 94 [and that is the section that deals with 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."
[6]The Tribunal found that there was no normal retiring age as regards this Appellant and therefore that the age of 65, on the face of it, applied. The appeal against that decision is on grounds as follows:
"Because the Tribunal distinguished between my client, a woman, and a man in Nash v Mash / Roe Group Ltd in this particular case it discriminates against Mrs Daly, a woman. Unfortunately the Tribunal erred in failing to distinguish between the applicant in Nash v Mash / Roe who was a man, and the applicant in this case who is a woman, (a) it would be open to any woman applicant to cite Nash v Mash/Roe (b) but even if that decision is accepted we cannot accept that our domestic law under section 109 of the Act is discriminatory against the woman."
[7]The Appellant has appeared this morning by Mr Whittingham, a friend, and he has made submissions to us in line with the skeleton argument which we had before us, which is brief and which effectively supports the Notice of Appeal. It says in its entirety as follows:
"The applicant Ms Daly brought a claim of unfair dismissal against her employers – The Caribbean Golden Age, Peterborough. The Tribunal in Leicester distinguished between Ms Daly a woman and Mr Nash of Nash v Mash / Roe Group Ltd who was a man. This clearly discriminates against Ms Daly and is contrary to the Sex Discrimination Act 1975 ."
[8]The decision being appealed makes it clear that at the original hearing at the Employment Tribunal in August 1999 the case of Nash v Mash / Roe Group Ltd [1998] IRLR 168 was brought to the attention of the Tribunal. In that case the Tribunal at London (South) having been presented with statistical evidence as to the number of men who were economically active over the age of 65, in contrast to the lesser number of women in that category, found that the statutory upper age limit of 65 for bringing a complaint of unfair dismissal was indirectly discriminatory against the male Applicant. His claim for unfair dismissal was therefore allowed to proceed.[9]The Employment Tribunal in the review decision now under appeal before us said, in paragraph 8 of its decision, the following:
"There is no evidence in the case to support any discrimination against the applicant other than to compare her with the male applicant in Nash v Mash/Roe which was decided on the specific facts of that case."
It then concluded that the present Appellant was unable to pursue her claim for unfair dismissal because of the age limit in section 109.[10]Whether the case of Nash was correctly decided on the then state of the law and whether, if so, it could stand in the light of subsequent decisions of the European Court, may be the subject of argument in this Appeal Tribunal in the future. It is not, however, necessary to determine those matters in this appeal. The Appellant had presented no evidence whatsoever to the Employment Tribunal to suggest that section 109 had a discriminatory effect upon her or upon women generally. The fact that on the particular facts of Nash an Employment Tribunal held that the provision had such an effect as regards a man, was and is irrelevant to the outcome of the present case. The Employment Tribunal in our view made a correct decision on the review on the case as presented to them. The appeal is dismissed.