Lloyd-Briden v Worthing College
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill |
| Judgment Date | 21 February 2008 |
| Neutral Citation | [2008] EWCA Civ 203 |
| Date | 21 February 2008 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2007/2198 |
[2008] EWCA Civ 203
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUSTICE WILKIE)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Case No: A2/2007/2198
THE APPELLANT APPEARED IN PERSON
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
This is an application by Mr Bernard Charles Lloyd-Briden, known as “Bill” Lloyd-Briden, for permission to appeal against an order of the Employment Appeal Tribunal (the “EAT”) following a hearing on 6 June 2007, handed down on 22 June 2007. Wilkie J was sitting alone.
The applicant was employed by Worthing College as a cleaner from September 1996 until January 2006. His date of birth is 15 April 1923, so that he was seventy-three years old when he began his employment and eighty-two years old when he was dismissed. No concern was expressed about the way he was performing his duties at the college, but the dismissal occurred because the college's insurers notified the college that because the applicant was over eighty he was not fully covered by the employment liability insurance policy provided by the insurance company. Notwithstanding he did his work perfectly well, the college were not prepared to take the risks consequent upon that and dismissed him.
He made a claim for unlawful dismissal to the Employment Tribunal. The tribunal chairmen considered submissions made to him and decided that he had no jurisdiction to deal with the claim for unfair dismissal because of the provisions of section 109 (1B) of the Employment Rights Act 1996. That section provides, as far as material:
“1) Section 94 does not apply to the dismissal of an employee if on or before the effective date of termination he has attained —
b) … The age of sixty-five”
It was section 94 which had conferred the right to make a claim for unfair dismissal.
The chairman struck out the claim as having no reasonable prospect of success. The applicant appealed to the EAT and on what is known as a SIFT, the appeal was rejected by HHJ McMullen QC. It then came before HHJ Burke QC on 7 February 2007 under Rule 3(10) of the EAT rules, which requires that further step to be taken if an appellant who fails on SIFT requests it, in certain circumstances. At the hearing before HHJ Burke, the applicant was represented by counsel, Mr Cooper, under the Employment Law Appeal Advice Scheme. Mr Cooper, on instructions, abandoned other grounds of appeal but maintained the appeal on the age cap which, he submitted, was unlawful as contrary to Union law. The judge allowed the case to proceed to a full hearing and it was then that the case came before Wilkie J. Mr Cooper again appeared for the applicant; the respondents were also represented by counsel, and plainly comprehensive and capable submissions were made to the judge by both parties.
The judge concluded — and I will refer later in a little more detail to his judgment — that there was nothing to require the Employment Tribunal to disregard section 109 of the 1996 Act and, accordingly, there was no jurisdiction to entertain a claim made by the applicant.
This is a renewed application for permission to appeal. On a consideration of the papers it was refused by Sir Henry Brooke who stated, having said there is no merit in other grounds of appeal:
“On the third ground, in my view it is not properly arguable that the judge was not clearly right in deciding that during the period before the new Equal Treatment Directive was bound to be in force in member states, the age rule contained in the Employment Rights Act was not unlawfully discriminatory, either in English or in EU law.
I have great sympathy for the appellant, but when radical changes to the law are made, things often seem unfair to those whose rights fall to be decided under the old law, before the changes came into effect.”
Mr Lloyd-Briden appears in person this morning. He has had assistance, for which I am grateful, as I am sure he is, from his daughter. His sense of grievance is of course understandable. He was dismissed on grounds of age and not because of any defects in his performance. Had the dismissal occurred later, about eight months later, a new statute would have applied and the limitation in section 109 would not have deprived a tribunal of jurisdiction.
The submission before the EAT was that the case of Mangold v Helm C 144/04 [2005] All ER(D) 287 (for November) meant that, notwithstanding the provisions of section 109, as it then existed, the tribunal had jurisdiction. Wilkie J in his judgment considered the case of Mangold in considerable detail. He set out the facts of the case and the paragraph upon which reliance was placed by counsel on the applicant's behalf. I refer to paragraph 77 of Mangold:
“In those circumstances it is the responsibility of the national court, hearing a dispute involving the principle of non-discrimination in respect of age, to provide, in a case within its jurisdiction, the legal protection which individuals derive from the rules of Community law and to ensure that...
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