MR D WALL v BRITISH COMPRESSED AIR SOCIETY [2003] UKEAT 169_02_0702

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 169_02_0702Case No Appeal No. EAT/169/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D WALLAPPELLANTBRITISH COMPRESSED AIR SOCIETYRESPONDENT
Before
Mr Justice Rimer Mr B V FitzgeraldDate 7 February 2003
[1]APPEARANCES For the Appellant MR JEREMY LEWIS (of Counsel) Instructed by: Messrs Green Vine Beverley Palos Solicitors 56-58 Bloomsbury Street London WC1B 3QT For the Respondent MR ANDREW BLAKE (of Counsel) Instructed by: Messrs Hartley Linfoot & Whitlam Solicitors Princess House 122 Queen Street Sheffield S1 2DW THE HONOURABLE MR JUSTICE RIMER This is an appeal by Mr Robert Desmond Wall against a decision of an Employment Tribunal sitting at London Central on 20 November 2001 and chaired by Miss E J Potter. The Tribunal's extended reasons were promulgated on 20 December 2001. Mr Wall was the unsuccessful applicant before the Tribunal. The respondent before the Tribunal, and now to this appeal, is British Compressed Air Society ("BCAS").[2]Mr Wall is the former Director General of BCAS. He was employed by it in June 1985 until he was dismissed by its Board on 26 February 2001. By his originating application, presented on 14 May 2001, he claimed compensation for what he said had been an unfair dismissal. A potentially fatal obstacle in the way of that claim was, however, quickly identified. The right not to be unfairly dismissed is conferred by section 94 (1) of the Employment Rights Act 1996, but that right is qualified by section 94(2) which provides that it is subject, amongst other things, to the provisions of sections 108 to 110 of the 1996 Act. Section 109 provides, so far as is material, as follows:
"109 Upper age limit (1) Section 94 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."
[3]Mr Wall was more than 65 at the date of his dismissal. In those circumstances, the parties identified the need for the determination at a preliminary hearing of whether or not his particular circumstances were such that section 109(1) excluded his right to claim that his dismissal had been an unfair one. In particular, if section 109(1)(b) applied to Mr Wall, then he clearly had no claim for unfair dismissal. His only hope of maintaining his claim was to show that he had "a normal retiring age" within the meaning of section 109(1)(a) and that he had not attained it at the time of his dismissal.[4]That being the key question, the parties agreed two questions which were to be the subject of decision by the Employment Tribunal at a preliminary hearing. They were as follows:(a) Was there a contractual agreement that Mr Wall would retire at the age of 70, i.e on 17 April 2003?(b) If there was such an agreement, did this constitute the normal retirement age, as set out in section 109 (1)(a) of the Employment Rights Act 1996 ?[5]In the event, the Tribunal made no finding on the first of those issues, which raised a question of fact. This was because both parties, who were both represented by counsel, agreed that the Tribunal should answer the question of law raised by the second of those issues on the basis of two agreed assumptions: first, that Mr Wall had a contractual retirement age of 70, and, second, that in his office of director general of BCAS, he occupied a "unique" position. The Tribunal recorded this agreement in paragraph 2 of its reasons.

(a) (i), and is defined in section 235(1) as follows:

" "position", in relation to an employee, means the following matters taken as a whole - (a) his status as an employee, (b) the nature of his work, and (c) his terms and conditions of employment,"
The question for the Tribunal therefore resolved itself into one as to whether, on the agreed assumptions, Mr Wall had a "normal retiring age" of 70 for the purposes of section 109(1)(a). The Tribunal referred to several authorities counsel had cited and concluded in paragraph 13 that the decision of this Appeal Tribunal in Dormers Wells Infant School -v- Gill, 16 July 1999, unreported, required it to decide the question in favour of BCAS. It held that Mr Wall had no "normal retiring age" for the purposes of section 109(1)(a) and that, as he was over 65 at the date of his dismissal, section 109(1)(b) prevented him from bringing a claim for unfair dismissal.[6]Mr Wall now appeals to this Appeal Tribunal against that decision. His contention is that his contractual retiring age of 70 is his "normal retiring age" for the purposes of section 109(1)(a) and he asks us to accept that and to reverse the decision of the Employment Tribunal. He appears by Mr Jeremy Lewis. Mr Andrew Blake, for BCAS, asks us to uphold the Tribunal's decision.[7]We propose to go first to the authorities in order to see what guidance they provide as to the meaning of "normal retiring age" in section 109(1)(a). Waite -v- Government Communications Headquarters [1983] ICR 653 is a decision of the House of Lords. It concerned the meaning of "normal retiring age" in paragraph 10 of schedule 1 to the Trade Union and Labour Relations Act 1974 , a statutory predecessor of section 109(1). Colonel Waite had obtained employment with the civil service in 1967 under the contractual terms and conditions of employment applicable to him in the Civil Service Code. Those terms and conditions provided for a retirement age of 60 and, although the employers could defer retirement under them until 65, employees had no right to stay on after 60. Colonel Waite was compulsorily retired in his 61 st year, and he brought a claim for unfair dismissal. The issue was whether his claim was barred as being brought after his "normal retiring age". His point was that he had not attained the "normal retiring age" for an employee in his position, so that his unfair dismissal claim could be entertained.[8]In the course of his speech, with which the other members of the House agreed, Lord Fraser of Tullybelton referred to the decision of the Court of Appeal in Nothman -v- Barnet London Borough Council [1978] ICR 336 and (at page 661A) summarised it as:
"authority for the proposition that the normal retiring age for an employee is to be found by looking exclusively at the conditions of employment applicable to the group of employees holding his position"
Lord Fraser expressed the view that that statement of the law was too rigid and inflexible because, as he said at page 661 H:
"If the normal retiring age is to be ascertained exclusively from the relevant contract of employment, even in cases where the vast majority of employees in the group concerned do not retire at the contractual age, the result would be to give the word "normal" a highly artificial meaning. If Parliament had intended that result, it would surely not have used the word "normal" but would have referred directly to the retirement age specified as a term of the employment."
Lord Fraser went on to say, at 662 D:
"I therefore reject the view that the contractual retiring age conclusively fixes the normal retiring age. I accept that where there is a contractual retiring age, applicable to all, or nearly all, the employees holding the position which the appellant employee held, there is a presumption that the contractual retiring age is the normal retiring age for the group. But it is a presumption which, in my opinion, can be rebutted by evidence that there is in practice some higher age at which employees holding the position are regularly retired, and which they have reasonably come to regard as their normal retiring age. Having regard to the social policy which seems to underlie the Act - namely the policy of securing fair treatment, as regards compulsory retirement, as between different employees holding the same position - the expression "normal retiring age" conveys the idea of an age at which employees in the group can reasonably expect to be compelled to retire, unless there is some special reason in a particular case for a different age to apply. "
Normal" in this context is not a mere synonym for "usual". The word "usual" suggests a purely statistical approach by ascertaining the age at which the majority of employees actually retire, without regard to whether some of them may have been retained in office until a higher age for special reasons - such as temporary shortages of employees with a particular skill, or a temporary glut of work, or personal consideration for an employee who has not sufficient reckonable service to qualify for a full pension. The proper test is in my view not merely statistical. It is to ascertain what would be the reasonable expectation or understanding of the employees holding that position at the relevant time. The contractual retiring age will prima facie be the normal, but it may be displaced by evidence that it is regularly departed from in practice. The evidence may show that the contractual retirement age has been superseded by some definite higher age, and, if so, that will have become the normal retiring age. Or the evidence may show merely that the contractual retiring age has been abandoned and that employees retire at a variety of higher ages. In that case there will be no normal retiring age and the statutory alternatives of 65 for a man and 60 for a woman will apply. In the present case the evidence does not establish that there was any practice whereby employees holding the position which the appellant held were permitted to retain their office after attaining the minimum retiring age of 60"[9]That authority shows that the statutory phrase "normal retiring age" does not refer exclusively to an employee's contractual age. That may be the starting point of reference and may in many cases also be the finishing point. But the evidence may show that the class of employees of which the claimant is one in fact has a reasonable expectation of retirement at some different age, in which case it is that age which will be the "normal retiring age". The fact that Lord Fraser was directing his thoughts particularly at cases in which the claimant is one of a group of like employees, all holding a position similar to the claimant, was underlined in Hughes -v- Department of Health & Social Security [1985] ICR 419 , in which, after citing the passage which we have cited from Waite , Lord Diplock said at 429:
"Twice in this passage Lord Fraser uses the expression "the group." "
Group" is not a word that is used in the statute. Lord Fraser is clearly using it as a short way of referring to employees holding a similar "position" to that held by the claimant, "position" by statutory definition takes into account his status as an employee, the nature of his work his terms and conditions of employment and nothing more."[10]The next decision to which we should briefly refer is a decision of this Appeal Tribunal in Brooks and others -v- British Telecommunications plc [1991] IRLR 4 . That concerned claims for unfair dismissal by 23 former employees who had been dismissed when between the ages of 60 and 64. A section 109 issue was raised by the respondent company. In paragraph 26 of the judgment, delivered by Mr Justice Wood (the President) this Tribunal identified the three questions an Employment Tribunal needs to focus on in ascertaining whether a claimant had any, and if so what, "normal retiring age". Mr Justice Wood said that the Tribunal needed:
"(i) to identify the 'undertaking' in which each of the applicants was employed; (ii) to identify which of the employees in that undertaking held 'the position' which each of the applicants held; (iii) to establish what, if any, was the 'normal retiring age' for an employee holding that position."
[11]The problem in the present case is, however, that in contrast to the cases that we have so far mentioned, Mr Wall was not a member of a group of employees holding a similar position. The agreed assumption was that he held a unique position. The first authority to which we have been referred which can be said to deal with such a situation is the decision of the Scottish Employment Appeal Tribunal in Age Concern Scotland -v- Hines [1983] IRLR 477 . Miss Hines became an employee of ACS when she was 57. Two years later she became subject to new employment conditions providing that the normal age of retirement would be 60 for women and 65 for men. She asked to be allowed to continue to work until she was 65. ACS agreed in principle but then dismissed her when she was 61. She complained of unfair dismissal. ACS claims that her claim was precluded by section 64(1)(b) of the Employment Protection (Consolidation) Act 1978, another statutory predecessor of section 109(1). The Industrial Tribunal held that Miss Hines's claim was not so precluded, but the EAT reversed that decision and held that it was.[12]The judgment was delivered by Lord McDonald. Lord McDonald referred to the principle to be derived from the Waite case in the House of Lords. He said it showed that, following the introduction of the new terms and conditions governing Miss Hines' employment, there was a presumption that 60 was the normal retiring age absent any evidence that in practice some higher age had become the accepted norm. He said that there was no such evidence, with the result that, if the new conditions had introduced a contractual age of 60, that must be the normal retiring age for the purpose of the section; and, if they did not, then the statutory alternative of 60 must still apply (that, of course, was a reference to the then equivalent of section 109(1)(b) as then applicable to women).[13]Lord McDonald then addressed an argument based on the proposition that Miss Hines had negotiated a special contract with ACS, deferring her retirement age to 65. He expressed no view on whether the point was good or bad, but on the assumption that it was good. He went on to say in paragraph 11: … "That however, is not the test under s.64(1)(b). It is not the situation of the individual employee that falls to be considered under that section. It is the situation of an employee holding the position which the dismissed employee held, ie of a member of the class to which he belonged. This appears from the definition of the word 'position' in s.153 of the 1978 Act. The word means, taken as a whole, status as an employee, nature of work and terms and conditions of employment. Thus whatever special contract [ACS] may or may not have made with [Miss Hines] the statutory remedy of unfair dismissal will not be available to her unless the normal retiring age for women employees in her position was higher than 60. In our opinion the question which the Industrial Tribunal posed to themselves in this respect was wrong. They asked what was the earliest age at which the appellants could require Miss Hines to retire; they should have asked what was the earliest age at which an employee holding the position which she held could be required to retire. We would have thought that the answer to this must be 60."[14]That passage reflects the EAT's view that a claimant who has what might be called a one-off contract providing for a particular retirement age will not necessarily be entitled to regard that age as a "normal retiring age" for purposes of section 109(1). The crucial question is whether it is the "normal retiring age" for an employee holding the position held by the particular claimant. In short, if the claimant is a member of a group of employees, however small, in a like position, it will be necessary to identify what the normal retiring age was for that group. That passage from the Age Concern Scotland case was cited with approval by Lord Justice Balcombe in his judgment in the Court of Appeal in Brooks and others -v- British Telecommunications plc [1992] IRLR 66, at 70 to 71. Having cited it, Lord Justice Balcombe said:
"19 In my judgment this principle is enunciated in Hines (supra) must be applicable even though there may be a number of employees who have been led to expect - either by a course of conduct or by express notification - that they may be allowed to retire at some date later than the normal retiring age, provided that there is evidence to show a normal retiring age for the group taken as a whole. See also the decision of the Court of Sessions in Highlands and Islands Development Board -v- MacGillivray [1986] IRLR 210."
[15]But what is the position if, as in the present case, there is no such group and the claimant is in a unique class of one? It was argued in the Age Concern Scotland case that Miss Hines was in a class composed exclusively of herself, and that the normal retiring age must be identified by reference to her own expected retiring age. Lord MacDonald dealt with and rejected that argument in paragraph 12 of his judgment. He said:
"For [Miss Hines] it was argued that she fell into a category of one, being the only counselling organiser employed by the appellants, and that there were therefore no employees holding the position which she held within the meaning of s.64(1)(b). If this were so, then plainly, in the necessary absence of comparisons with other employees holding the same position, a normal retiring age could not be established and the statutory alternative of 60 would apply."
[16]If that is a correct statement of the law, then it would seem to us also to be fatal to Mr Wall's claim that he is entitled to complain of unfair dismissal. That is because, in his case too, it could not be said that he had a normal retiring age of 70, with the result that as he was over 65 when he was dismissed, an unfair dismissal claim was excluded by section 109(1)(b). We add that it was not suggested to us that the decision of the Court of Appeal in Brooks could be said to have affirmed the correctness of that particular part of Lord McDonald's judgment. Such a point did not arise in the Brooks case, and the Court of Appeal did not refer to paragraph 12.[17]The question of the position of the "unique employee" was, however, referred to briefly in the course of the Court of Appeal's judgment in Patel -v- Nagesan [1995] IRLR 370 . The case raised two main issues, one of which was whether the claimant was precluded by a forerunner of section 109(1) from presenting an unfair dismissal claim. By then, the legislation provided for an alternative cut-off age of 65 for both men and women, as does section 109(1)(b). Mrs Nagesan was employed as a care manager. Her contract specified no retirement age. She attained 60 years of age, was dismissed shortly afterwards and she applied to an Industrial Tribunal claiming unfair dismissal. The employers disputed the Tribunal's jurisdiction, relying on a letter they had written to all employees, including Mrs Nagesan, a few months before her dismissal. The letter had purported to change the terms of employment of all employees and to introduce a new retiring age of 60 for all of them, although Mrs Nagesan had refused to accept the new terms and had maintained that no specific retirement age applied to her. The employers claimed that a new contract of employment was in force with Mrs Nagesan which did incorporate this new retirement age. They argued that, by the time of her dismissal, Mrs Nagesan was over 60 and so over the "normal retiring age" for the purposes of the then equivalent of section 109(1)(a), so that her unfair dismissal claim could not be brought. The Industrial Tribunal rejected this contention, finding that "there was no retirement age of 60 in Mrs Nagesan's case".[18]The leading judgment of the Court of Appeal was delivered by Lord Justice McCowan. He referred to Lord Fraser's speech in the Waite case, citing a passage which we too have cited. He then said this, at paragraphs 31 to 33:
"31 Mr Hockman", [who was leading counsel for the employers] "first, says that his primary argument is that that finding" [and that is the Tribunal's finding to which we have just referred] " was irrelevant. With that I cannot agree. In particular, I see no finding or any evidence that there was a normal retirement age for an employee holding the position that she held. All the evidence amounts to, in my judgment, is that the [employers] were attempting to impose on her a contract with a term that she retire at 60, an imposition which she resisted. 32. If one tests it with Lord Fraser's words in mind, by asking what Mrs Nagesan's reasonable expectation at the time was, it clearly was not that she would have to retire at 60. Mr Elias puts it in this way: he says that you cannot talk of a group expectation when her position is unique. A concept of a normal retiring age simply does not apply. In this context, I would read the words of the Employment Appeal Tribunal in the final paragraph of their judgment: "
The contention on behalf of the appellant was that because all the other employees had been persuaded to accept 60 as their retiring age for the future, that became the "normal" age for retirement and the respondent's case therefore failed. We accept the contention of the respondent that, as the "person in charge", with responsibilities which statute imposes upon an individual holding that office, she was in a unique position. We consider that there was ample evidence upon which the tribunal could find that there was no retirement age specified and that accordingly the statutory retirement age of 65 now applies, there being no other "normal" retirement age. It is noteworthy that at least that one other employee had been employed when already over the age of 60' I go back to the words in s.64(1)(b)(i): '…. if, in the undertaking in which he was employed, there was a normal retiring age for an employee holding the position which he held ….' 33 In my judgment, that is what is necessary to concentrate upon, and I cannot find there was any evidence of such a normal retiring age for an employee holding Mrs Nagesan's position."[19]The employers' argument was, at least in part, that even though she may not have accepted the new contractual terms, with their new retirement age of 60, Mrs Nagesan was one of a group of employees who, for the most part, had accepted those terms, and therefore it could be said that she had a "normal retiring age" of 60 because that was the age at which her group could reasonably expect to retire. But it appears from the extract from the judgment of the EAT that the particular responsibility to which Mrs Nagesan was subject in her job placed her in a unique class of her own, so that her retirement expectations could not be assessed by reference to those of a member of any group of employees, which is what Mr Elias submitted. Under her contract, no specific retirement age was identified and so it is not surprising that it was impossible to identify any "normal retiring age" for the purposes of the equivalent of section 109(1)(a). As none could be identified, it followed that it was the only the equivalent of section 109(1)(b) which could apply to her case: and as she was well short of 65, she was entitled to bring her unfair dismissal claim. In these circumstances, we do not regard the decision of direct assistance in the present case. In particular, we do not regard it as providing guidance on whether, in the case of an employee who is in a unique position and whose contract provides for retirement at a specified age, that age can be his "normal retiring age" for the purposes of section 109(1)(a).[20]The most recent decision on the type of problem with which we are presented is that which the Employment Tribunal regarded as governing this case, namely the decision of this Appeal Tribunal in The Dormers Wells Infant School -v- Gill , 16 July 1999, unreported. The judgment was delivered by His Honour Judge Peter Clark. Mr Gill was an employee of the school as a maintenance officer. He was dismissed on 4 June 1996, on which date he was over 65 . He presented a complaint of unfair dismissal in July 1996 and the point was taken that his claim was barred by the predecessor of section 109. Judge Clark referred to the Brooks case and the tripartite test which it poses for any Tribunal faced with the question of whether an applicant is excluded by section 109 from bringing an unfair dismissal complaint. He said there was no problem as to the first question, namely as to the undertaking which had employed Mr Gill. As to the second matter, namely the identification of "which employees in that undertaking held the position which the employee held", he said that it was there that the problems begin to arise. He then said, in paragraphs 19 to 22:
"19 Both Waite and Hughes concerned civil servants. However in Age Concern Scotland v Hines [1983] IRLR 477, …… it was held that where the dismissed employee is unique within the undertaking, it is not possible to have a "group" of one, and accordingly there is no normal retiring age in such a case. It is necessary to fall back on the pensionable age of 65 (Section 109(1)(b)). That approach is also to be found in the later Court of Appeal decision in Patel v Nagesan [1995] IRLR 370. 20 Assuming that the Applicant is able to show that there are other employees holding the same position as him, the effect of the authorities is that the contractual retirement age, if any, raises a rebuttable presumption that that is the normal retiring age. 21 The test is what is the age which employee of all ages in the Applicant's position could reasonably regard as the normal retiring age applicable to the group: Brooks v British Telecommunications Plc [1992] IRLR 66 (CA). 22 The fact that individuals within the group retire at different ages will not necessarily mean that there is no normal retiring age. However there must be a specific age at which those within the group retire. Otherwise, there will be no normal retiring age and the pensionable age of 65 will apply."
[21]In disposing of the appeal in that case, this Tribunal concluded that, as the Employment Tribunal had made no attempt to answer either of the second and third questions required by the tests identified by this Appeal Tribunal in the Brooks case, the matter had to be remitted to the Employment Tribunal for a determination of these matters. However, in the course of their judgment, this Appeal Tribunal made their own views on the applicable law clear. His Honour Judge Clark said, in paragraph 25 "25 Mr Freer submits that the Applicant was the only maintenance officer; he was told that he could retire at the same time as his partner; that was his normal retiring age. However, he accepts that such a submission is inconsistent with the ratio in Age Concern Scotland v Hines and the approach of the Court of Appeal in Patel v Nagesan . He invites us to rule that the decision in Hines is wrong. We decline to do so in the light of Patel v Nagesan ." The Appeal Tribunal then went on, in paragraph 30, to indicate that if on the remission the Employment Tribunal were to find that Mr Gill held a unique position at the school, then: …. "following Hines , no question of a normal retiring age arises and the Applicant, being over the age of 65 at the[ effective date of termination], cannot bring a claim of unfair dismissal."[22]We come now to the issue we have to decide. We regard this as turning essentially on the construction of section 109(1). The case for BCAS is that the matter has been conclusively decided against Mr Wall by the decisions of this Appeal Tribunal in Age Concern Scotland and Dormers . The Age Concern Scotland case decided that an employee who holds a unique position with his employer, being a position in respect of which there are no comparators available for the purposes of the performance of the second task identified by Mr Justice Wood in the Brooks case, can have no "normal retiring age" for the purposes of section 109(1)(a), and that this is so even if the employee has a contract specifying a particular retirement age. We agree that paragraph 12 of Lord McDonald's judgment in Age Concern Scotland supports that conclusion, and agree also that his decision in that respect was accepted as correct by this Appeal Tribunal in the Dormers case, although it is not clear to us that this Appeal Tribunal in the latter case had the benefit of very full argument on the point.[23]If those cases were decided correctly on this particular point, then we agree that it would follow that Mr Wall's appeal must fail. We do not, however, with respect, agree with the views expressed in the Dormers case that the Nagesan case provides Court of Appeal authority which can be regarded as also decisive of this appeal against Mr Wall, a view which appears to have caused this Appeal Tribunal in the Dormers case to decline to re-visit the Age Concern Scotland case. Indeed, the logic of their view expressed in paragraph 25 would appear to be that no tribunal short of the House of Lords could re-visit it. We note, first, that although it appears that the Age Concern Scotland case was cited to the Court of Appeal in the Nagesan case (see [1995] ICR 988, 989), the court made no reference to it in their judgments. We accept that the Court of Appeal's decision proceeded on the basis that Mrs Nagesan was in a unique position, in respect of which no comparators were available, for the purpose of identifying a normal retiring age. But she did not have a contract which provided for a specific retiring age, and so the court did not have to decide, nor did it decide, the point arising in the present case: namely, is the "normal retiring age" of an employee who has a unique position capable of being the retiring age provided for in his contract of employment.[24]In our view, the answer to that question is "yes". With very considerable diffidence, we find it difficult to agree with the different view favoured in the Age Concern Scotland case. It appears to us to be clear that the general policy underlying section 109(1) is that employees who have a normal retiring age under their terms of employment should be entitled to bring unfair dismissal claims if they are dismissed before attaining that age, but not if they are dismissed after they have done so. We of course follow the argument to the effect that, in any case where a point arises such as that which has arisen in this case, the second part of section 109(1)(a)(i) requires, or may appear to require, a consideration of the retiring age expectations of an employee other than the claimant employee. At first sight that may perhaps seem a little odd, but the reason for it is that the generality of employees are members of groups of employees in a like position, and the policy underlying the scheme of section 109(1)(a) is, as Lord Fraser explained in Waite , to achieve fair treatment as regards compulsory retirement as between different employees holding the same position. The Waite decision also shows that the reference to "normal retiring age" for such employees is not necessarily to their contractual retirement age, although that will usually be the starting point, but may be to a different age which has been applied to such group of employees in practice.[25]Where, however, we respectfully depart from the Age Concern Scotland case is that we fail to understand on what basis an employee holding a unique position, and with the benefit of a contract providing for a specific retiring age, cannot have a "normal retiring age". If, for example, Mr Wall had been one of a group of two employees, both in a like position, and both with a contractual retirement age of 70, it would seem to us clear that he would be entitled to bring his unfair dismissal claim. But BCAS's proposition is that the legislation positively discriminates against Mr Wall from being able to do so because he was in a class of one rather than two. We can identify no reason in principle or policy why the legislation should be interpreted in this way. The decision in the Waite case shows that the "normal retiring age" will ordinarily be the contractual retiring age unless only the evidence shows that it has been departed from in practice. Why, then, should there be any different policy as regards an employee holding a unique position but having a contract providing for a specific retiring age?[26]It appears to us that, ultimately, BCAS's answer to this point is that it is based on the proposition that section 109(1)(a) simply does not work in relation to an employee in a unique position, even if he has a contract providing for a normal retiring age. That is because the second half of paragraph 1(a)(i) requires a reference to a comparator and there can be no comparator of someone in a unique position. We follow the point but find ourselves unable to accept that it requires a construction of the section that is fatal to Mr Wall's case. To the question "was there a normal retiring age for an employee holding the position held by Mr Wall immediately before his dismissal?" the answer, in our view, is "yes, the only employee holding that position was Mr Wall himself, and it was 70". In a context in which there was and could be no comparator to which reference could be made, we do not understand why this is not a perfectly legitimate answer. Insofar as section 109(1)(a) ordinarily requires a reference to the normal retiring age expectations of comparators, that is because of its policy objective to achieve fairness between members of a particular group of employees. Where the group is a group of one, there is simply no need to identify a comparator, and we do not regard our conclusion that Mr Wall had a normal retiring age of 70 as involving any distortion of the statutory language. On the contrary, we regard that conclusion as consistent with what we understand to be the purpose underlying section 109(1)(a).[27]We therefore allow the appeal, set aside the decision of the Employment Tribunal, and remit Mr Wall's application to the Employment Tribunal for a substantive hearing on all points arising under it, including any issue there may be as to whether Mr Wall's contract did in fact incorporate a retiring age of 70.[28]We add that Mr Blake urged upon us that given that, the two decisions of this Appeal Tribunal in the Age Concern Scotland and Dormers cases point towards the dismissal of this appeal, we ought loyally, whatever our own views might be, simply follow those decisions and leave the consideration of their correctness to the Court of Appeal. Had the issue with which we are concerned been the subject of fresh and full consideration in the Dormers decision, then even if we had disagreed with the conclusion arrived at, we might well have taken the view that in order to achieve a degree of uniformity, at any rate at the level of this Appeal Tribunal, we should simply follow the two cases and leave it to Mr Wall to take the matter to the Court of Appeal if he so wished. But, for reasons given, it appears to us that the Dormers case did little more than regard the issue as a closed book at this level, on the basis of its view that the decision of the Court of Appeal in Nagesan was effectively the governing word. We have explained why we do not regard the Nagesan decision as in fact governing the matter, with the result that the only reasoned decision on the point, although the reasoning was extremely short, is paragraph 12 of the Age Concern Scotland case. That is, of course, a persuasive authority to which we have given careful regard, but for the reasons we have given, we have felt compelled to arrive at a conclusion different to that favoured in that case.[29]Mr Blake, as we are departing from two earlier decisions, and as the point certainly cannot be said from your side of the court to be unarguable, and as we recognise it as a point of some importance, we will give permission to appeal. If the matter goes to the Court of Appeal, and they were to take a different view and restore the Employment Tribunal's decision, Mr Lewis would then still be left wanting to raise the Rutherford point. Is the best course for us simply to adjourn the application to amend the Notice of Appeal until after the disposal of any appeal of the Court of Appeal?