Waite v Government Communications Headquarters [1983] UKHL 7

House of Lords

Between

WaiteAppellant

Government Communications HeadquartersRespondent

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 20th day of December 1982 complained of in the said Appeal be, and the same is hereby, Affirmed and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That there be no Order as to Costs in this House or in the Court of Appeal.

Cler: Parliamentor:

HOUSE OF LORDS

WAITE (APPELLANT)

GOVERNMENT COMMUNICATIONS HEADQUARTERS

(RESPONDENT)

Lord Fraser of Tullybelton Lord Keith of Kinkel Lord Scarman Lord Bridge of Harwich Lord Templeman

Lord Fraser of Tullybelton

My Lords,

The main question raised in this appeal concerns the proper construction of the expression " the normal retiring age " where it occurs in the Trade Union and Labour Relations Act 1974 schedule 1 paragraph 10. The expression was used in the same context in section 28 of the Industrial Relations Act 1971, which was repealed, and re-enacted with amendments which are not here relevant, by the 1974 Act. The 1974 Act itself has now been repealed by the Employment Protection (Consolidation) Act 1978. Section 64 of the 1978 Act re-enacts paragraph 10 of schedule 1 of the 1974 Act with further amendments. The 1974 Act was the legislation in force at the time which is material for this appeal, and I shall refer only to it.

A subsidiary question as to the proper construction of certain Civil Service regulations is also raised.

The appellant, Lieutenant Colonel Waite, was born on 30th October 1917. He had a distinguished career in the army and attained the rank of Lieutenant Colonel in the Royal Signals Regiment. In 1961 he left the army in order to take up employment with the respondent's predecessors, the London Communications Electronic Security Agency, who were then advertising for officers with practical experience of telecommunications. His employment with them began on 4th December 1961, when he became a temporary Civil Servant with the grade of Higher Executive Officer. On 13th March 1967 he became an " Established " Civil Servant with pension rights. The appellant now accepts that the contractual terms and conditions of employment applicable to him from and after 13th March 1967 were those contained in the Civil Service Code, amplified in some respects by the departmental policy of his employing department. Before the Court of Appeal the appellant had argued that the age at which he could be compelled to retire depended upon the terms of his original employment as a temporary Civil Servant but the Court of Appeal, and the Tribunals, decided against that contention and he now accepts their decision on that issue.

On 30th April 1978 the appellant was compulsorily retired. On that date he was aged sixty and a half years. He had not completed the twenty years of reckonable service with the respondents and their predecessors necessary to qualify for a full pension. He had in fact completed slightly over sixteen years of service reckonable for pension. On his retirement he was immediately re-employed in a lower grade as a Clerical Officer; in the technical language of the department he " regressed ". Thereafter he worked as a clerical officer, without prejudice to his contention that the respondents had had no power to compel him to retire on 30th April 1978. In July 1978 the appellant complained to an Industrial Tribunal that he had been unfairly dismissed. The respondents at first denied that his dismissal had been unfair, but they no longer maintain that denial. They also took, and still maintain, the preliminary point that the Industrial Tribunal had no jurisdiction to entertain the appellant's application, on the ground that, before the date on which his employment was terminated, he had attained the normal retiring age for an employee holding the position which he held. For that point they rely on paragraph 10(b) of schedule 1 to the 1974 Act. Paragraph 10 is in Part II of the schedule which is the Part dealing with " unfair dismissal ". Paragraph 4 which is also in Part II provides that in

every employment to which it applies every employee shall have the right not to be unfairly dismissed by his employer, and that the remedy of an employee who is unfairly dismissed is by way of complaint to an Industrial Tribunal. Paragraph 10 provides as follows: —

" 10. Subject to paragraph II below, paragraph 4 above does not " apply to the dismissal of an employee from any employment if the " employee—

" ( a ) was not continuously employed for a period of not less than 26 weeks ending with the effective date of termination, or

" ( b ) on or before the effective date of termination attained the age " which, in the undertaking in which he was employed, was the " normal retiring age for an employee holding the position which " he held, or, if a man, attained the age of sixty-five, or, if a " woman, attained the age of sixty; . . . .".

The " effective date of termination " in relation to an employee whose contract of employment is terminated by notice means the date on which the notice expires, see paragraph 5(5)( a ) of the schedule. " Position " is defined in section 30 of the Act as follows: -

" ' position ', in relation to an employee, means the following matters " taken as a whole, that is to say, his status as an employee, the nature " of his work and his terms and conditions of employment; ".

For reasons which I shall explain when I come to consider the subsidiary question, I am of opinion that the retiring age laid down in the terms and conditions of the appellant's employment (which I shall call the " contractual " retiring age ") for a person holding his position was 60. The respondents had power, in their discretion, to retain him in his position after he had attained the age of 60 and until he reached the age of 65, and they did in fact retain him until he was 60 1 / 2 in order to carry out a particular task, but he had no right under the terms of his employment to be retained after attaining the age of 60. Such retention was entirely a matter for the respondents' discretion. Nevertheless the appellant contends that on 30th April 1978 when he was dismissed, he had not attained the normal retiring age for an employee in his position, and therefore that the Industrial Tribunal had jurisdiction to consider his complaint. Mr. Tabachnik, who appeared for the appellant, in opening the appeal naturally put his contention at its highest, and he submitted that the expression " normal " retiring age " in paragraph 10( b ) simply meant the usual retiring age, or the age at which persons holding the position generally retired in the normal course of events, and that the contractual retiring age, if any, was irrelevant. He said that, if there is no practice sufficient to establish a usual retiring age, because employees retire at various different ages, then there is no normal retiring age and the alternative provided by paragraph 10( b ) , namely the age of 65 for a man or 60 for a woman, will apply, in accordance with the decision of this House in Nothman v. Barnet London Borough Council [1979] I.C.R. 111. The respondents' original contention was that the contractual retiring age for employees holding the appellant's position conclusively fixed their normal retiring age, and that any departure from the contractual retiring age in practice was irrelevant. Between these extreme contentions, various intermediate positions were explored in the course of argument.

Considering that the expression " normal retiring age " in its present legislative context dates only from 1971, it has been the subject of judicial exposition to an extent which is remarkable both in amount and in variety. I must refer to some of the authorities. In Ord. v. Maidstone and District Hospital Management Committee [1974] I.C.R. 369, a case which Mr. Tabachnik described as the sheet anchor of the appellant's case, Sir John Donaldson, sitting as President of the National Industrial Relations Court, expressed the opinion at page 372 D that the ordinary meaning of the words " normal retiring age " is " the age at which the employees concerned usually retire ". But that was a case where there was no contractual retiring age for the group of employees to which the appellant belonged—namely Mental Health Officers. In that respect the case is distinguishable from the present.

Sir John Donaldson's definition of " normal retiring age " was disapproved by the Court of Appeal in Nothman v. Barnet London Borough Council [1978] I.C.R. 336 where the employee was a woman teacher. The contracts of employment of ail teachers, men and women, provided for automatic retiral at age 65, with no power to the employers to grant any extension. The teacher concerned was dismissed when she was aged 61. The Court of Appeal (reversing the Employment Appeal Tribunal) held that the normal retiring age in any particular profession was the age at which the employees in that profession " must retire or should retire " in accordance with their contracts—see per Lord Denning M.R. at 343 D. Lawton L.J. at page 345 G said that counsel for the employers had submitted that there was no normal retiring age for their assistant teachers. The learned

Lord Justice then said this:

" He [counsel] alleged before us—but did not call any evidence " before the Industrial Tribunal to establish that this is so—that the " Council's assistant teachers retire at all ages, some after 65, others " well before that time. This submission may have been founded on the " definition of ' normal retiring age ' which Sir John Donaldson gave " in Ord."

Lawton L.J. then quoted the definition and proceeded at p. 346:

" I do not accept Sir John's definition as being correct. I construe " the word ' retiring ' in the phrase ' the normal retiring age ' as having " gerundial qualities so as to give it the sense of ' must ' or ' should '. " It follows that the normal retiring age of teachers employed by the " Council is the age at which they would have to retire unless their " service was extended by mutual agreement. This age was 65. The " conditions of employment said so."

Accordingly that case is 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.

When the case of Nothman came on appeal to your Lordships' House, cited supra, it was decided on another point, and the only reference to the weight to be given to the contractual retirement date was made by Lord Salmon who appears to have assumed that it was conclusive—see pages 113 E, 115 G, 116 B and 116 F. But as the point was not argued in this House I do not regard anything said here as indicating the considered view of the House or any of its members.

The decision of the Court of Appeal in Nothman has stood until the present time though not without some judicial criticism especially in Howard v. Department of National Savings [1981] I.C.R. 208 from Ackner L.J. and Griffiths L.J. and Secretary of State for Trade v. Douglas [1983] I.R.L.R. 63 from Lord MacDonald.

In Post Office v. Wallser [1981] 1 All E.R. 668 the Court of Appeal held that the normal retiring age was a matter of evidence and did not depend exclusively on the relevant contract of employment. Some of the observa- tions in that case are not altogether easy to reconcile with what had been said in Nothman supra but I respectfully agree with the view expressed by my noble and learned friend Lord Bridge (who was then Bridge L.J.) at page 673 as follows:

" I agree with the broad proposition that the normal retiring age " within the meaning of [paragraph 10 of schedule 1 of the 1974 Act] " is not necessarily to be discovered in the contract of employment of " the group of workers with whom the Court or Tribunal is concerned, " but it does seem to me that when contractual terms and conditions " of employment do govern the age of retirement of the relevant group, " those terms provide the best evidence which will prevail to determine " what is the normal age of retirement, unless effectively contradicted " by other evidence." (Emphasis added.)

In Howard v. Department for National Savings supra the Court of Appeal reverted to the view that the contractual retiring age, express or implied, conclusively fixed the normal retiring age, and they also said that unless a contractual retiring age is either expressed or to be implied, it is impossible to establish that there is any normal retiring age. But in Duke v. Reliance Systems Ltd. [1982] I.C.R. 449, where there was no express contractual retiring age, the Employment Appeal Tribunal took a more flexible view. Browne-Wilkinson J., delivering the judgment of the Tribunal, first held that no contractual retiring age could be implied, and then proceeded to consider whether there was evidence of practice which established a normal retiring age. In my opinion that was the correct approach.

I have reached the opinion that the Court of Appeal in Nothman, supra, stated the law in terms which were too rigid and inflexible. If the normal retiring age 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. Moreover in a case where, unlike Nothman, the contract provides not for an automatic retiral age but for a minimum age at which employees can be obliged to retire, it would be even more artificial to treat the minimum age as fixing the normal age, as the respondents would have us do, even in a case where the minimum age has become a dead letter in practice. By no means all contracts of employment specify the age, or the minimum age, of retirement; indeed outside of large organisations like the Civil Service it is probably exceptional for the age of retirement to be specified. So, if the normal retiring age can be ascertained only from the terms of the contract, there will be many cases in which there is no normal retiring age and in which the statutory alternatives of 65 for a man and 60 for a woman will automatically apply, although some other age may be well established and recognised in practice. If that were the law it might operate harshly in the case of women employees over the age of 60, as they would never be entitled to complain to the Industrial Tribunal of unfair dismissal unless they could establish that they were subject to a contractual retiring age higher than 60.

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 a temporary shortage 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. The figures for the six years 1973 to 1978 inclusive show that a total of 41 officers holding the same position as the appellant retired. I use " retired " to include some who " regressed ". Of that total, 30 retired or regressed at the age of 60. Eleven were retained after they had attained age 60, but we know nothing of the reasons for their retention. The fact that just over one quarter of the relevant group of officers were retained after they had attained age 60 falls far short of showing that the contractual retiring age had been abandoned or departed from. If the case had been a narrow one on its facts, one in which a tribunal might reasonably have taken the view that the contractual age had been abandoned, your Lordships might have thought it right to remit the case to an Industrial Tribunal to come to a decision on the facts. But in my view no Tribunal applying the law correctly could find that the contractual retiring age had been departed from in this case. Accordingly I consider that the appellant has failed to show that the Industrial Tribunal had jurisdiction to consider his complaint.

The subsidiary question which I have already mentioned concerns the meaning of one paragraph, paragraph 10442, of the Civil Service Pay and Conditions of Service Code. In order to appreciate that paragraph it is necessary to refer to some of the other paragraphs on the same subject. Paragraph 8572 provides as follows:-

" 8572. The minimum retiring age is the earliest possible age at " which a Civil Servant can retire of his own volition and become " entitled to immediate payment of pension benefits; this for most " Civil Servants is age 60. . . .".

" 8575. Provided his department is prepared to retain him, it is " not necessary for a Civil Servant to retire at the minimum retirement " age. . . . . "

" Age of retirement.

" 10441. An officer may on age grounds retire at his own wish or " be retired at the instigation of his department. In either case, " retirement may be effected when the officer has reached his minimum " retirement age, or at any time thereafter. The date of retirement of " any officer who is being retired is a matter entirely within the " discretion of the head of each department."

" 10442. An officer who has not completed 20 years' reckonable " service on reaching age 60 should, provided he is fit, efficient and " willing to remain in service, be allowed to continue until he has " completed 20 years' reckonable service or has reached age 65, " whichever is the earlier. Officers with short service generally have " special claims to retention."

The argument for the appellant on this part of the case is that the effect of the provision in paragraph 10442 that an officer who has not completed 20 years reckonable service " should " be allowed to continue, gives him a right to be retained. That involves reading the word " should " as if it were " must " and in my view there is no justification for reading it in that way. The same argument was presented on behalf of the appellant in Howard v. The Department for National Savings, supra. Lord Denning M.R. at page 211 said this:-

" The word ' should ' has been canvassed before us. It was " suggested that it means ' must '. I do not agree. I think it means " should normally be allowed. It still leaves the compulsory retirement " age at 60—with a potential extension."

I respectfully agree.

Paragraph 10442 appears to me to be addressed to the officer in each department who has the responsibility of deciding whether to retain officers who attain age 60 or not. It is intended as an instruction to him on the general policy to be applied, and not to create rights in officers who attain age 60. That view is reinforced by the second sentence of paragraph 10442. The reference there to officers with short service generally having " special " claims " to retention is in my view entirely inconsistent with the suggestion that they have a contractual right to be retained.

I am accordingly of opinion that the minimum retirement age, and the contractual retirement age of officers such as the appellant is age 60.

I would dismiss the appeal.

As success on the main question of law was divided, and as the appeal was to some extent a test case I would make no order for costs in this House or in the Court of Appeal.

Lord Keith of Kinkel

My Lords,

I have had the benefit of reading in advance the speech of my noble and learned friend, Lord Fraser of Tullybelton. I agree with it, and for the reasons he gives I too would dismiss the appeal.

Lord Scarman

My Lords,

For the reasons given in the speech of my noble and learned friend, Lord Fraser of Tullybelton, with whom I agree, I too would dismiss this appeal. I also agree that no order should be made as to costs in this House or the Court of Appeal.

Lord Bridge of Harwich

My Lords,

For the reasons given in the speech of my noble and learned friend, Lord Fraser of Tullybelton, with which I entirely agree, I too would dismiss the appeal.

Lord Templeman

My Lords,

For the reasons given in the speech of my noble and learned friend, Lord Fraser of Tullybelton, I too would dismiss the appeal.

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