Howard v Department for National Savings
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ACKNER,LORD JUSTICE GRIFFITHS |
| Judgment Date | 14 October 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J1014-6 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | No. EAT/141/78 |
| Date | 14 October 1980 |
[1980] EWCA Civ J1014-6
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
On Appeal from the Employment Appeal Tribunal
The Master of the Rolls
(Lord Denning)
Lord Justice Ackner and
Lord Justice Griffiths
MR. ALEXANDER IRVINE, Q. C. and MISS ELIZABETH SLADE (instructed by Messrs. Simmonds, Church Rackham) appeared on behalf of the Appellant.
MR. SIMON BROWN and MR. D. BLUNT (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
This case will be of interest to those in the Civil Service - and elsewhere - who are approaching retirement age. Unlike me To understand it, you must realise that, under the statute, when you are compulsorily retired, you are to be regarded as having been dismissed by your employers. The question of compensation depends on whether or not there is a normal retiring age for a man in your position. If there is a normal retiring age - let us say at 60 - and you stay on at work afterwards - say till 63 - you cannot claim for unfair dismissal. But if there is no normal retiring age, you can claim up till the age of 65.
The contest in this case is whether there was a normal retiring age for Mr. Howard. He held a position with the national Savings Committee for many years. His rank was said to be rather equivalent to that of a Higher Executive Officer in the Civil Service. He was compulsorily retired at the age of 6If - that is 3½ years short of 65. He claimed that, in the circumstances, it was equivalent to an unfair dismissal. But the Department say that he cannot claim at all: because the normal retiring age for a man in his position is 60. That is the whole question in the case: Now the normal retiring age for a man in his position age 60? In which case he cannot claim. Or was there no normal retiring age for a man in his position? In which case he can claim. That is the question. It has come before the industrial tribunal and before the employment appeal tribunal: each of which held that the normal retiring age for Mr. Howard was 60. And so each held that he cannot claim. Now there is an appeal to this court.
First, I will give Mr. Howard's dates. He was born on the 2nd July, 1916. He joined the Civil Service on the 5thJanuary, 1959, when he was 42. He was appointed to the National-Savings Committee. In 1977 the department in which he was employed virtually closed down. He was then 61 years of age. Steps were taken to transfer as many employees as possible to other departments. But, so far as employees aged 60 or over were concerned - and Mr. Howard was one of them - they were given notice that their employment would be determined in March 1978. This is the letter to him of the. 15th March, 1977:
"It is with regret that I write to advise you that, because of the Government's decision to withdraw Civil Service support staff from the Voluntary Savings Movement, it will not be possible to retain mobile grades over the age of 60 beyond 31 March 1978. There will however be employment for you up to this date but I now give you 12 months' formal notice that your appointment will be terminated on grounds of redundancy on 31 March 1978 which will be regarded as your last day of service".
That was the notice terminating his employment. He claims compensation for unfair dismissal. But he cannot succeed if the normal retiring age was 60, even though he went on working afterwards.
THE STATUTE AND REGULATIONS
The right to compensation for unfair dismissal is given by paragraph 4 of the Trade Union and labour Relations Act G 1974, Schedule 1. But paragraph 10 provides:
"… paragraph 4 above 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, it in the undertaking in which he was employed, was the normal retiring age for an employee holding the position which heheld, or, if a man, attained the age of sixty-five, or, if a woman, attained the age of sixty".
The question is, what was the normal retiring age for a person holding the position which Mr. Howard held?
THE CIVIL SERVICE SSIISRALLY
So far as the Civil Service generally is concerned, there are provisions dating back to 1952 which say that a person can be compulsorily retired at the age of 60. Thereafter he may be kept on but it is a matter entirely within the discretion of the head of the department. The "minimum" retiring age - as it is put - is age 60 in the Civil Service as a whole: but a man can be retained afterwards at the discretion of the head of the department.
But there is a provision - which would apply to people like Mr. Howard - who had not completed a full 20 years' service. At the time Mr. Howard left, he had only served 19½ years. I will read from the General Civil Service provisions:
"104-42 Any 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".
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 leavesthe compulsory retirement age at 60 - with a potential extension.
MR. HOWARD'S DEPARTMENT
So far as Mr. Howard's department is concerned, there was a special provision about retirement. It was introduced in 1970. It contemplated that several officers should be calledupon to retire at the age of 60. But there was to be an 4 exception under paragraph 7(c) of that document. This exception is very much relied upon by Mr. Howard. It was this:
"Subject to reasonable efficiency and physical capacity any officer who would have less than 20 years' reckoned service to his credit at age 60 will be allowed to stay on until he has completed 20 years or reached age 65 whichever is the earlier".
At the age of 60 Mr. Howard had not completed 20 years' service at all. He had only served about 17 years. The Department agree that that provision did apply to him in 1970: and that, at that time, if he had served less than 20 years, he would have been allowed to stay on until he had completed 20 years' service. But it is important to notice that, in the 1970 statement of retirement policy, there is an overriding clause. It is No. 13, which says:
"All the above arrangements are subject to review from time to time as occasion may require and are specifically subject to alteration if general Civil Service rules make that necessary".
Some years later it was necessary to review the arrangement. It was necessary by the year 1977. In that year a different policy was adopted whereby the staff of the national Savings Committee were to be withdrawn and placed elsewhere. So in 1977 an amendment was made. It was announced that:
"In the new situation created by the decision to withdraw the staff of the National Savings Committees by 31 March 1978, officers of the NSCs with the dispensation provided in the DNS Agreement of 1970 will by that date … (5. 4) having J] reached age 60 (including those who are already 60) be allowed to continue in DNS employment up to 31 March 1978".
What was the effect of this policy change? Did it mean that there was a return to the compulsory retirement age of 60 with an allowable extension to the 31st March, 1978? Or, as Mr. Irvine has contended before us this morning, does it do away with the normal retiring age of 60 for people like Mr. Howard? In which case, it would mean that there was no normal retiring age.
THE LAW
It remains to consider the law on the matter, particularly the meaning of "normal retiring age". There are several authorities about it. In the early days Sir John Donaldson, when he was sitting in the Industrial Relations Court, suggested that "normal retiring age" meant the usual age at which men retired. That has now been held to be incorrect. It v/as departed from in Nothman v. Barnet London Borough Council in this court (1978) 1 Weekly Law Reports 220: affirmed by the majority in the House of Lords (1979) 1 Weekly Law Reports 67. The contest there was whether there was a fixed age of retirement for both men and women at the age of 65: or whether there was no normal retiring age. The evidence showed that teachers up and down the country retired at varying times between...
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