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Department of Health and Social Security v Coy

Judgment Weekly Law Reports The Law Reports Cited authorities 4 Cited in 43 Precedent Map Related
Vincent
JurisdictionEngland & Wales
JudgeLord Diplock,Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Brightman
Judgment Date25 April 1985
Judgment citation (vLex)[1985] UKHL J0425-2
Date25 April 1985
CourtHouse of Lords
Categories
Hughes
(Original Respondent and Cross-Appellant)
and
Department of Health and Social Security
(Original Appellants and Cross-Respondents)
Coy (A.P.)
(Original Respondent and Cross-Appellant)
and
Department of Health and the Social Security)
(Original Appellants and Cross-Respondents)
Jarnell
(Original Respondent and Cross-Appellant)
and
Department of the Environment
(Original Appellants and Cross-Respondents)
(Conjoined Appeals)

[1985] UKHL J0425-2

Lord Diplock

Lord Bridge of Harwich

Lord Brandon of Oakbrook

Lord Brightman

House of Lords

Lord Diplock

My Lords,

1

These three appeals, which were heard together in your Lordships' House, as they had been in the Court of Appeal, raise the question of what was "the normal retiring age" (as that expression is used in section 64(1)( b) of the Employment Protection (Consolidation) Act 1978) of civil servants holding positions of higher executive officer (Mr. Coy) and of senior executive officer (Mr. Hughes) respectively in the Department of Health and Social Security (D.H.S.S.) and of professional and technology officer grade II (Mr. Jarnell) in the Department of Environment (D.O.E.).

2

All three cases differ from that of Lt. Col. Waite which was considered by this House in Waite v. Government Communications Headquarters [1983] 2 A.C. 714, where the relevant terms of his employment as respects retirement were, throughout the period of his employment by the department, governed by the provisions of the Civil Service Pay and Conditions of Service Code ("the primary code") itself. These provisions were authoratively construed by my noble and learned friend, Lord Fraser of Tullybelton, as making the minimum age under the terms of his employment in Crown employment at which a civil servant might retire of his own wish or be compelled to retire by the head of his department the contractual retirement age and thus the "normal retiring age" within the meaning of section 64(1)( b) of the Act of 1978. This was age 60. Lord Fraser's speech was concurred in by all other members of the House.

3

In contrast to the Waite case, the terms of their employment as respects retirement of the three respondents to the instant appeals have been governed by rules made from time to time by the departments by which they were employed. The names borne by these departments have been changed from time to time during the period of the respondents' employment by them. Rules made by the D.H.S.S. and its predecessors have been described as "circulars;" those made by the D.O.E. and its predecessors have been described as "bulletins." These circulars and bulletins were issued under the discretionary power, conferred upon departments by paragraph (iii) of the introduction to the primary code, to "make rules or regulations or give instructions for controlling the conduct of their establishments and defining the conditions of service of their staff." This departmental discretion to make rules or regulations or to give instructions is, however, subject to the limitation that it must be exercised "consistently with the rules consolidated in this [sc. the primary] code."

4

My Lords, it is common ground that although there is a difference in the rank attained by each at the time of termination of his employment, that of Mr. Hughes (S.E.O.) being higher than that of Mr. Coy (H.E.O.), this is not material to any question that your Lordships have to decide in the appeals to which they are respectively respondents. Their cases may be regarded as identical. I propose accordingly to deal with them together before turning to the case of Mr. Jarnell.

5

The relevant facts are set out in the judgment of Slade L.J. [1984] I.C.R. 557, 564-567. For the present purposes it is enough to say that each was born in 1921, Mr. Hughes on 23 March and Mr. Coy on 2 May; so on the corresponding dates in 1981 each became 60 years of age, in 1982 each became 61 and will become 65 years of age in 1986 if they so long live. These are the competing dates that may be relevant for the purposes of the appeals.

6

In 1948 each was employed in local government service. In that year the Ministry of National Insurance and the National Assistance Board were created as departments of central government of both of which the D.H.S.S. is the successor. The employees of the new department became civil servants. To this new department Mr. Hughes and Mr. Coy were invited to transfer from local government service. The terms of employment offered to them were contained in a document "L.A. Memo. 1 (1948)" which contained the following paragraph:

"Age of Retirement - An established civil servant may be retired at any time after reaching the age of 60. Established service cannot normally be prolonged beyond the age of 65, though employment in a temporary capacity may be permitted after that age. In view of the present manpower shortage, both the Assistance Board and the Ministry of National Insurance propose, for the present, to allow local authority employees who become established members of their staff under the arrangements set out in this memorandum to continue in an established capacity until age 65, if they so wish, provided they are fully fit and efficient in their grade."

7

Both Mr. Hughes and Mr. Coy accepted this offer and in 1948 became established civil servants. As such the terms of their employment were regulated under the prerogative powers of the Crown; but your Lordships are not concerned with what the legal position would have been before employment by the Crown was, with minor and for present purposes immaterial exceptions, assimilated to employment by other employers for purposes of claiming remedies for unfair dismissal. Provision for this,originally introduced by the Industrial Relations Act 1971, is now contained in section 138 of the Act of 1978 of which the material provisions are in subsection (7) paragraphs ( b) and ( c):

"( b) any reference to a contract of employment shall be construed as a reference to the terms of employment of a person in Crown employment;

( c) any reference to dismissal shall be construed as a reference to the termination of Crown employment;"

8

Part V of the Act of 1978, which is made applicable to civil servants by section 138(1), deals with unfair dismissal. For the purposes of the present appeals it may be assumed that both Mr. Hughes and Mr. Coy, each of whose Crown employment was determined by written notice given by the D.H.S.S. and expiring in the case of Mr. Hughes on 31 March 1982 and in the case of Mr. Coy on 2 May 1982, would have been able to claim that section 54 gave them the right not to be unfairly dismissed and to have the question of whether that right had been infringed determined by an industrial tribunal, unless its jurisdiction to entertain the claim was excluded by section 64(1)( b) which so far as is relevant to all three appeals (Jarnell as well as Hughes and Coy) reads as follows:

"(1) Subject to subsection (3), section 54 does not apply to the dismissal of an employee from any employment if the employee -

( 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."

9

The definition of "position" in relation to an employee is found in section 153(1), it "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 "effective date of termination" in this paragraph is so defined in section 55, as to be the date of expiry of the notice of termination of Crown employment. This, in the case of Mr. Hughes, was 31 March 1982 and in the case of Mr. Coy, 2 May 1982.

10

My Lords, I have already set out verbatim the paragraph dealing with age of retirement in the original offer of Crown employment that was made to Mr. Hughes and Mr. Coy in 1948 and was accepted by them. It emphasises that all that it is stating is the departmental policy on age of retirement "for the present" and is consequent upon "the present manpower shortage."

11

By becoming established civil servants, Mr Hughes and Mr. Coy became subject to whatever was the current code regulating the conditions of service in Crown employment. So far as the primary code is concerned, however, your Lordships in the instant appeals are only concerned, as this House also was in the Waite case [1983] 2 A.C. 714, with the Civil Service Pay and Conditions of Service Code made under Article 5 of the Civil Service Order in Council 1969, which provides:

"5. The Minister for the Civil Service may from time to time make regulations or give instructions for controlling the conduct of Her Majesty's Home Civil Service, and providing for the classification, remuneration and other conditions of service of all persons employed therein whether permanently or temporarily."

12

The primary code issued by the Minister for the Civil Service represents a confusing amalgam of statements of administrative policy and terms of employment of civil servants which so far as the provisions of the Act of 1978 relating to unfair dismissal are concerned are to be treated as if they were contracts of employment. I have already drawn attention to paragraph (iii) of the introduction to the primary code which grants to individual government departments discretionary powers to supplement the primary code in its application to the particular department so long as such supplementary provisions are consistent with the rules consolidated in the primary code. So the primary code retains its overriding importance and D.H.S.S. circulars should be construed as intended to be consistent with it.

13

The relevant provisions of the primary code...

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