H M CUSTOMS & EXCISE v MR D N JAYAWARDANE [2002] UKEAT 1092_01_2702

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1092_01_2702

Case No Appeal No. EAT/1092/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

H M CUSTOMS & EXCISEAPPELLANT

MR D N JAYAWARDANERESPONDENT

Before

His Honour Judge A Wilkie

Sir Gavin Laird

Date 27 February 2002

[1]APPEARANCES For the Appellant MR B CARR and MR P COPPEL (of Counsel) Instructed by: H M Customs & Excise Corporate Legal Services Group New King's Beam House 22 Upper Ground London SE1 9PJ HIS HONOUR JUDGE A WILKIE QC This is the preliminary hearing of an appeal by the Customs & Excise against the Decision of the Employment Tribunal sitting at London south on 6 August 2001 which decided that it had jurisdiction to hear complaint by Mr Jayawardane essentially on the basis that he was not precluded from making his application for a finding of unfair dismissal by reason of the fact that he was over the age of sixty when he made his application.

[2]The Employment Tribunal had to apply section 109 of the Employment Rights Act 1996 and for that purpose considered whether there was a normal retiring age which applied to Mr Jayawardane's employment and if so, what it was. Customs & Excise had asserted that there was a normal retiring age and that it was the attainment of the age of sixty which, if that were right, would have precluded the complaint.

[3]The Tribunal concluded that there was a normal retiring age, but said that it was sixty two. In so doing, they purported to find that there was a contractual retiring age which was the same as the normal retiring age, namely sixty two, and in coming to that conclusion, it had consideration both to the House of Lords decision in Waite -v- GCHQ and in particular, the passage at page 662D of that reported case. It highlighted on a number of occasions in their Decision a particular paragraph in the employee handbook which reads that:

"In the view of the Department's custom and practice over many years of allowing staff in Job Bands 1 …..to stay on beyond age 60 if they wished you cannot be required to leave before 62 (Bands 5 and 6) ….unless you are made compulsorily redundant."

[4]It is said on behalf of Customs & Excise that the Tribunal erred in a number of respects. First of all, it is said that they erred in finding that the contractual terms were as they said. The error is said to be that they focused unduly on that particular passage in that particular document, when there are a number of other passages in that same document, and in other documents which point the other way.

[5]Secondly, it is said that the Tribunal mixed up the tests by apparently deciding that the contractual test was therefore the normal retiring age for individuals. It is said that that is an error of law.

[6]Thirdly, it is said that they gave undue significance to what they had decided was the contractual retiring age and ignored entirely what was said to be significant statistical evidence that the overwhelming practice at that level was for employees to retire at the age of sixty, rather than any later age.

[7]At this stage of the appeal process, it is not for us to decide whether any of these grounds of appeal succeed; it is for us to decide whether arguable points of appeal have thus been identified. We are satisfied that these points are arguable and therefore should go through to a full hearing.

[8]In the light of the potentially widespread importance of the Decision in this case, given the employer, we categorise this as a Category B case, to be listed for a day. We direct that the bundle prepared for the preliminary hearing shall stand presumptively as the bundle for the appeal, subject to any additions proposed by the Respondent. Skeleton Arguments and lists of authorities fourteen days in advance of the listed hearing date. This is not a case where Chairman's Notes have any relevance at all.