Barber v Thames Television Plc
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,LORD JUSTICE NEILL,LORD JUSTICE STAUGHTON |
| Judgment Date | 29 April 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0429-7 |
| Docket Number | 92/0425 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 April 1992 |
[1992] EWCA Civ J0429-7
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR JUSTICE KNOX)
Royal Courts of Justice
Lord Justice Dillon
Lord Justice Neill
Lord Justice Staughton
92/0425
LORD IRVINE OF LAIRG Q.C. and MR JOHN BOWERS, instructed by Messrs D.J. Freeman & Co. appeared for the Appellants (Defendants).
MR COLIN EDELMAN, instructed by Messrs Brian Thompson & Partners, appeared for the Respondent (Plaintiff).
This is an appeal by employers, Thames Television Plc, by leave granted by Lord Justice Neill, against a decision of the Employment Appeal Tribunal (Mr Justice Knox) delivered on 4th December 1990, whereby the Employment Appeal Tribunal allowed an appeal by a Mr Keith Barber against a decision of an Industrial Tribunal in North London which had held by a majority on 8th August 1989 that it had no jurisdiction to consider a complaint by Mr Barber of unfair dismissal by his employers, Thames. By its order the Employment Appeal Tribunal declared that the Industrial Tribunal had jurisdiction to hear Mr Barber's complaint. By their notice of appeal Thames ask that the decision of the Employment Appeal Tribunal be set aside and that of the Industrial Tribunal be restored.
Mr Barber was born on 3rd April 1925 and he entered the employment of Thames in 1968 when Thames, having succeeded to the television franchise previously held by Rediffusion Limited, by whom Mr Barber had been employed since 1958, took over the services of Mr Barber and other employees of Rediffusion. Mr Barber's employment by Thames was terminated on 3rd April 1989, his 64th birthday, on the ground that on that date he attained the normal retirement age applicable to him. Mr Barber claimed that his contractual retirement age was 65 and that that had never been varied so as to reduce the age to 64. He started, therefore, an action in the Queen's Bench Division, claiming damages for wrongful dismissal in breach of his contract of service. With that this appeal is not concerned. He also however issued alternatively his application in the Industrial Tribunal complaining of unfair dismissal under section 54 of the Employment Protection (Consolidation) Act 1978. Section 54 provides by subsection (1) that:
"In every employment to which this section applies every employee shall have the right not to be unfairly dismissed by his employer."
Thames responded to that application by claiming that the Industrial Tribunal had no jurisdiction to entertain the application. The Industrial Tribunal had to decide on that claim as a preliminary issue. The decision of the Industrial Tribunal was by a majority. The minority member, with every respect to him, directed his attention to the wrong question. Instead of considering whether the Industrial Tribunal had jurisdiction to entertain Mr Barber's application, he considered the substantive issue and held that the termination of Mr Barber's employment was against natural justice because Thames had had no right to alter the contractual retirement age of Mr Barber and others without prior consultation with the trade unions and employees concerned. That minority view I can put aside. The majority view however upheld the claim of Thames that the Industrial Tribunal had no jurisdiction to entertain Mr Barber's application. That claim was founded on section 64(1) (b) of the 1978 Act which, as amended, by the relevant time provided so far as material as follows:
"Section 54 does not apply to the dismissal of an employee from any employment if the employee-
(b) attained the following age on or before the effective date of termination, that is to say-
(i)…if in the undertaking in which he is employed there was a normal retiring age for an employee holding the position which he held and the age was the same whether the employee holding that position was a man or a woman, that normal retiring age;
(ii)…in any other case the age of sixty five."
The word "position", used twice in that section, is defined in section 153(1), the interpretation section 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."
The history of Thames's requirements as to the retirement of its employees up to 26th October 1987 is summed up in the judgment of Mr Justice Knox. It is sufficient to say that immediately before 26th October 1987 all men who had entered the employment of Thames on or after 1st January 1978, and all women who had entered Thames's employment at any time even before that date, were liable to compulsory retirement at the age of 60. But for men who had entered the employment of Thames before 26th October 1987, 60 was not the normal retirement age. There were many exceptions and special arrangements. In Mr Barber's case his contractual retirement age was 65. But it was conceded before the Industrial Tribunal that, during the period before 26th October 1987, the multiplicity of special treatment was such that in relation to employees who joined the company before 1978 there was a variety of expectations regarding retiring age and therefore no normal retiring age within the meaning of section 64(1) (b) of the Act. That situation arose because there had been various options exercisable by various people at various times which led to expected retirement dates depending not necessarily on age but on the exercise of a particular option or on length of service.
On 26th October 1987 Thames sent a letter to Mr Barber and 480 other of its two thousand or so employees who would be affected by the changes, notifying them of changes in policy. These changes had two aims, which I take from the judgment of Mr Justice Knox:
"First, it was proposed to bring the retirement ages for women who had joined the Company before 1978 into line with the retirement ages of men in the same category of employees who had joined before that date. Previously a woman's retirement age had been 60 and this change had the effect of increasing that age for those in relevant categories.
Secondly, a scheme was prepared for progressive reduction of retirement ages of all those whose retirement age was over 60, whether they were men with such retirement ages or women who fell into that category as a result of the first proposed change."
The proposal was to reduce the retirement age from 1st November 1988 from 65 to 64 and progressively by a year at a time until from 1st November 1992 all employees whenever recruited would have a retirement age of 60 years.
The letter itself is set out, in fact inaccurately with a line left out at a crucial point, in paragraph 5 of the decision of the Industrial Tribunal where it is said to have been sent to Mr Barber "and all other employees in a similar position to him". So far as Mr Barber was concerned, its effect was that, for the year from 1st November 1988 to 1st November 1989, 64 became the retirement age for all men and women employees for whom it had not been 60 before 1st November 1988. It was during that year that Mr Barber attained the age of 64 and accordingly, according to the policy declared in the letter, it would be in that year, on attaining the age of 64, that he would be compulsorily retired.
In the jurisprudence which has developed under section 64, the persons who hold the same position as defined in section 153(1) as a particular employee have been referred to as "the group" to which that particular employee belongs. The word "group" is not to be found in the Act itself. It was introduced by Lord Fraser of Tullybelton in Waite v. Government Communications Headquarters [1983] 2 A.C. 714. A summary therefore of the effect of section 64(1) (b) is that a person whose employment is terminated because he has reached the normal retirement age of his group cannot complain of unfair dismissal. There is no jurisdiction to entertain his complaint because the opening words of section 64(1) (b) provide that section 54 does not apply to the dismissal of such an employee from his employment. But if there is no normal retirement age of his group, then he or she can claim for unfair dismissal if his employment is terminated by compulsory retirement under the age of 65, since 65 is the residual age referred to in (ii) in section 64(l) (b). In the present case, therefore, Thames say the normal retirement age for Mr Barber at the time his employment was terminated was 64 by virtue of the letter of 26th October 1987. Therefore, say Thames, the Industrial Tribunal had no jurisdiction to entertain his compliant of unfair dismissal. By contrast Mr Barber says—for a reason to which I shall come—that there was no normal retirement age. Therefore, as his employment was terminated by compulsory retirement before he attained 65, the Industrial Tribunal had jurisdiction to consider his complaint of unfair dismissal. He also says, through the submissions of Mr Edelman on his behalf, that the letter of 26th October 1987 did not alter the contractual terms of Mr Barber's employment by Thames and is therefore not to be taken into account in considering what his position was and what group he belonged to in applying section 64(1) (b).
The approach of the Employment Appeal Tribunal, which Lord Irvine has naturally followed in his submissions, was to begin by considering whether, on a true appreciation of the decision of the Industrial Tribunal, the Industrial Tribunal had taken as Mr Barber's group either all the recipients of the letter of 26th October...
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