Notes of Cases
| Date | 01 September 1986 |
| Published date | 01 September 1986 |
| DOI | http://doi.org/10.1111/j.1468-2230.1986.tb01708.x |
NOTES
OF
CASES
UNFAIR DISMISSAL
AND
THE
UPPER AGE
LIMIT
EXCLUSION:
EROSION
OF
THE
RIGHTS
OF
THE
OLDER
EMPLOYEE
THE
ruling of the European Court of Justice’ that the imposition of
a lower retiring age for women than for men upon employees in
the public sector contravenes the EEC Equal Treatment Directive,
has been hailed as a victory for women and will certainly require
the Government to rethink its policies on retirement and pensions.
Discrimination in retirement on the grounds of sex is however,
only one aspect
of
a much wider problem
of
the rights
of
older
employees generally under British employment law. Recent judicial
treatment
of
this latter question culminating in the House
of
Lords’
decision in the consolidated cases
of
Hughes
v.
D.H.S.S.;
Coy
v.
D.H.S.S.
and
Jarnell
v.
Dept.
of
the Environment2
gives cause for
serious concern as to the adequacy of employment protection
afforded the older employee, whether male or female.
The problem of the status of the older employee has arisen in
connection with the question of whether an employee has reached
“normal retiring age” for the purposes of section
64(l)(b)
of the
Employment Protection (Consolidation) Act
1978.
Section
64
states
that an employee may not complain of unfair dismissal if he: “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
65,
or, if a woman, attained the
age
of
60.”
The phrase “normal retiring age’’ has given rise to
much difficulty
of
interpretation. An initial problem concerned the
relationship between this age and the state pensionable age
of
65/60.
Could the normal retiring age be greater than
65/60
thus
enabling an employee to claim unfair dismissal even though he had
attained the state pensionable age? In a decision reflecting the
ambiguity of the provision the House
of
Lords in
Nothman
v.
London Borough
of
Barnet3
held by a majority of
3-2
that the
normal retiring age could be greater or less than
65/60.
The
concept
of
normal retiring age thus assumed great importance; only
if
there was no such age could the state pensionable age apply.
This concept was defined by Lawton
L.J.
when
Nothman
was
before the Court of Appeal, as the age at which an employee can
be required to retire in accordance with his contract unless his
service is extended by mutual agreement.4 When the case came
before the House of Lords this definition was not properly
Marshall
v.
Southampton and
S.
W.
Hanu A.H.A. (Teaching)
[1986]
I.R.L.R.
140.
630
SEPT.
19861
NOTES
OF
CASES
631
considered: the main issue before the House being the relationship
between the normal retiring age and the state pensionable age, on
which point the House affirmed the decision of the Court of
Appeal.
Lawton L.J.3 contractual approach was followed in subse uent
example, if the normal retiring age is to be ascertained solely from
the contract
of
employment this would give a highly artificial
meaning to the word “normal” in section
64
in those cases where
the contractual age had long since been abandoned in favour of
some other age at which most employees regularly retired. Such an
approach, it has been suggested, would encourage an unscrupulous
employer to evade the unfair dismissal legislation by inserting in
the contract an unrealistic minimum retiring age.7 Further, where
the contract does not stipulate any retiring ag-and this is likely
to be the case for most employees outside large organisations-
there would be no normal retiring age and the statutory alternatives
of 65/60 would automatically apply.
An opportunity to clarify the situation came before the House of
Lords in 1983 in
Waite
v.
Government Communications Headquar-
ters,’
Lord Fraser delivered the main opinion, with which the rest
of the House agreed. In his Lordship’s view, the social policy
behind the legislation was to secure fair treatment as regards
compulsory retirement, as between different employees holding the
same position. In order to achieve this, a more flexible approach
than the strictly contractual was necessary; normal retiring age
should be the age at which relevant employees (namely those
holding the same position as the dismissed employee at the relevant
time) can
reasonably expect to be compelled to retire
unless there is
some special reason in a particular case for a different age to
apply. In determining this, the contractual age, if one exists, is
prima facie the normal, but this presumption can be rebutted if
employees in practice retire at some definite higher age which they
have reasonably come to regard as their normal retiring age. If the
evidence shows that the contractual age has been abandoned and
that employees retire at a variety of different ages, there will be no
normal retiring age and the statutory alternatives will apply.9 The
evidence in
Wuite
showed that just over one quarter of the relevant
employees were in fact retained beyond the contractual minimum
age of 60 and the House held that this fell far short of establishing
cases, but not without recognition of the difficulties it caused.
2
For
Only Lord Salmon referred to the weight to be given to the contractual retiring age
and he appears to have assumed that it was conclusive, supra note 3, at p.37.
See Howard v. Depr.
of
National Savings [1981] I.R.L.R.
40;
Secretary
of
Srare for
Trade v. Douglas (19831 I.R.L.R. 63 and Duke v. Reliance
System
Lrd. (19821 I.C.R.
449. See
also
Post
Ofice v. Wallser 119811 I.R.L.R. 37.
’
Griffiths L.J. in Howard v. Depr.
of
National Savings, supra note 6, at p.43.
’
Further, the word “normal” does not mean ‘‘usual.’’
Thus
a purely statistical
approach, without having regard
to
whether some employees might have been retained in
employment until a higher age
for
special reasons, is not appropriate. Zbid. at p.343.
[1983] I.R.L.R. 341. See McMullen (1984) 13 I.L.J. 57.
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