TEES & HARTLEPOOL PORT AUTHORITY LTD v (1) MR R BOSOMWORTH (2) MR K HARLAND (3) MR D McKENNA (4) MR B BLOOM [2002] UKEAT 0728_02_3110

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0728_02_3110Case No Appeal No. EAT/0728/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
TEES & HARTLEPOOL PORT AUTHORITY LTDAPPELLANT(1) MR R BOSOMWORTH (2) MR K HARLAND (3) MR D McKENNA (4) MR B BLOOMRESPONDENTS
Before
Mr Justice Wall Mr B R Gibbs Dr D GrievesDate 31 October 2002
[1]APPEARANCES For the Appellant MR R DOWNEY (of Counsel) Instructed by: Jacksons Solicitors Innovation House Yarm Road Stockton on Tees TS18 3TN THE HONOURABLE MR JUSTICE WALL We have before us the Preliminary Hearing of an appeal by the Tees and Hartlepool Port Authority Ltd against the decision of the Employment Tribunal held at Thornaby on Tees on various dates in April 2002.[2]The unanimous decision of the Tribunal was, in summary, that the Applicants before it had the right not to be unfairly dismissed under section 94 of the Employment Rights Act 1996 and the right to a redundancy payment under section 135. A further finding (we need not recite them all) was that their complaints of unfair dismissal and breach of contract were well-founded. The Tribunal made an order for redundancy payments.[3]The case raises, once again, the vexed issue of contractual and normal retirement dates. In essence what happened in the instant case was that in May 1986 there was an agreement between the Port Authority and these employees through their trade union that the retirement age would be reduced from 65 to 62. However, there was also an understanding (and I use the word "understanding" as opposed to contractual term because that may be in issue) that men who could not achieve the Inland Revenue limit at the age of 62 would be permitted to continue at work until either their pension calculated at the age of 62 and increased by not less than 6% per annum plus a lump sum was equal to 2/3rds of final salary, or they reached the age of 65, whichever was the earlier. The evidence before the Tribunal was that every employee who wished to exercise that option was allowed to so. There were no apparent exceptions.[4]However, in July 1999, when there were trading difficulties with the Port Authority, a memorandum was circulated, the penultimate paragraph of which reads:
"One further measure which the Company has decided to implement is the withdrawal of the concession whereby certain employees have been permitted to remain in employment beyond normal retirement age. This concession is withdrawn with effect from 1 October 1999. Any employee who has reached the age of 62 by 30 September 1999 will, therefore, automatically retire on that date."
[5]The consequence of that memorandum, from the Applicants' point of view, was that they were unable to apply to the court under section 109 of the ERA because they were deemed to have reached their normal retirement age which, on this analysis, was 62.[6]Before us this afternoon Mr Downey argues that the Tribunal erred in law in failing to find that the normal retirement age for the Applicants was 62. He submits that, given the contractual age of 62 then, notwithstanding the arrangement which had been in place since 1986, the employer was entitled, as at the date of termination which was July 1999, to insist upon the strict contractual position, and was not bound by "the concession" (as it was described on the employer's behalf) with the consequence that the normal retirement date had to be seen as 62 and these employees were beyond it.[7]We have to say, as we made clear to Mr Downey in argument, that we find this position singularly unattractive since it is clear from the evidence that the Applicants had all, in effect, been relying on what they understood to be the agreement in 1986 for their pension provision, and had ordered their lives accordingly..[8]Nonetheless, we are satisfied that this does raise a point of law with other arguments put forward by Mr Downey, and that it is a point which is arguable and which should go forward. As Mr Downey rightly pointed out to us, the fact that an argument may be unattractive or be perceived to produce a position of considerable unfairness to the Applicants is neither here nor there if the point of law is a sound one.[9]In those circumstances, with some reluctance, we agree that this is an arguable point (with others in the Notice of Appeal which we do not propose to itemise at this stage) and the matter will therefore go forward to a full hearing.[10]Although the question of normal retirement ages has been raised on a number of occasions and there are various authorities in relation to it, we regard this as an important case and we therefore propose to allocate it to Category A. We would be interested to hear from Mr Downey how long he thinks it is likely take to argue: 1 day.