Nothman v Barnet London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Lord Salmon,Lord Edmund-Davies,Lord Fraser of Tullybelton,Lord Russell of Killowen |
| Judgment Date | 13 December 1978 |
| Judgment citation (vLex) | [1978] UKHL J1213-2 |
| Date | 13 December 1978 |
| Court | House of Lords |
[1978] UKHL J1213-2
House of Lords
Lord Diplock
Lord Salmon
Lord Edmund-Davies
Lord Fraser of Tullybelton
Lord Russell of Killowen
Upon Report from the Appellate Committee to whom was referred the Cause Nothman against The Mayor etc., of the London Borough of Barnet, That the Committee had heard Counsel for the Appellants and the Respondent in person on Monday the 13th day of November last upon the Petition and Appeal of the Mayor Aldermen and Burgesses of the London Borough of Barnet of Town Hall, The Burroughs, Hendon, London, NW4 praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 2nd day of November 1977 so far as therein stated to be appealed against might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order so far as aforesaid might be reversed, varied or altered or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as also upon the Case of Miriam Nothman lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 2nd day of November 1977 in part complained of in the said Appeal be, and the same is hereby, Affirmed and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay or cause to be paid to the said Respondent the Costs incurred by her in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments if not agreed between the parties.
My Lords,
I have read in advance the speech to be delivered by my noble and learned friend Lord Fraser of Tullybelton. I share with him the misfortune of differing from the majority of your Lordships and from the members of the Court of Appeal as to the meaning to be ascribed to the short and simple phrase that falls to be construed in this appeal. Like him and Kilner Brown J. I think that the words are clear and free from ambiguity and that the result of giving to them their ordinary meaning and grammatical effect leads to a result that is neither absurd nor unjust. It would be possible to expand, though without thereby improving, my noble and learned friend's reasons for holding the view that we share; but since whatever meaning commends itself to three of your Lordships can alone be the right one, I will not waste print and paper in doing so.
My Lords,
Miss Miriam Nothman was appointed by the Barnet London Borough Council as a full time teacher of mathematics at Copthall School with effect from 1 September 1974. She was then 59 years of age. Her conditions of employment included a provision that her employment would terminate automatically at the end of the term during which she reached her 65th birthday. This was the normal retiring age alike for all full time men and women teachers at that school.
In a case such as this, most teachers, especially those of Miss Nothman's age would have hoped and expected to stay on at the school until reaching the retiring age. And this was certainly Miss Nothman's ambition.
Prior to 1971, employers were legally entitled to dismiss their employees providing that the relevant facts and the express or implied terms of the relevant contract of employment empowered them to do so. If, however, an employer wrongfully dismissed an employee, the employee could have brought an action only to recover damages for wrongful dismissal but not to obtain an order or a recommendation that he or she should be reinstated. The Industrial Relations Act of 1971 was a remarkable piece of social legislation. Parliament recognised that even if the employer had the right, in strict law, to dismiss the employee there were circumstances in which it would be unfair for the employer to exercise that right. And so the concept of unfair dismissal was born. The Act laid down in detail what constituted unfair dismissal (sections 23 and 24). It save the employee, in certain circumstances, the right not to be unfairly dismissed and, if so dismissed, the right of obtaining a remedy by complaining to an industrial tribunal (sections 22 and 28). If the industrial tribunal found the complaint to be justified and considered that it would be practicable and fair for the employee to be reinstated the tribunal could make a recommendation to that effect. Where the tribunal found that the employee's complaint of unfair dismissal was well founded, but did not make a recommendation for re-instatement or did make such a recommendation which was not complied with, the tribunal had to make an award of compensation to be paid by the employer in respect of the unfair dismissal (section 106). The general principles relating to the assessment of compensation were elaborately set out in sections 116 and 118.
The Industrial Relations Act was abolished by the Trade Union Relations Act 1974 which, so far as relevant to this appeal, came into force on 16 September 1974 and, amongst other things, reproduced all the provisions of the Act of 1971. The council dismissed Miss Nothman from her employment as from the 31 December 1976 on the alleged ground that she was unable satisfactorily to carry out her duties. At the time of her dismissal, she was 61 years of age. Not unnaturally she felt very hurt by this slur on her professional skill, and she had a genuine sense of grievance about the way in which she had been treated. Accordingly, she brought a claim before the industrial tribunal affirming that she had been unfairly dismissed. Her concern was to clear her professional reputation against the allegation of incompetence and to be re-instated so that she might continue to carry out, until she reached retiring age, the work in which she was greatly interested and which she believed would be of help to her pupils. This was of much greater importance to her than the financial loss she had suffered by what she was sure amounted to unfair dismissal.
Miss Nothman's claim was dismissed by the industrial tribunal upon a preliminary objection raised by the council, and the question as to whether or not she had been unfairly dismissed did not arise for decision.
The council contended that even if she had been unfairly dismissed she was unable, in law, to complain because she was a woman over 60 years of age. Her appeal to the Employment Appeal Tribunal was dismissed. Both tribunals considered that their decisions worked a grave injustice but that the law made it impossible to arrive at any other decision. Miss Nothman appealed successfully to the Court of Appeal and the council now appeal to your Lordships' House on the ground that the decision of the Court of Appeal was wrong in law.
This appeal turns upon the true construction of paragraphs 4 and 10 of Schedule 1 to the Act of 1974 which replaced and re-enacted sections 22 and 28 respectively of the Act of 1971. The two paragraphs so far as relevant read as follows: —
" Right of employee not to be unfairly dismissed
4–(1) In every employment to which this paragraph applies every employee shall have the right not to be unfairly dismissed by his employer, and the remedy of an employee so dismissed for breach of that right shall be by way of complaint to an industrial tribunal under Part III of this Schedule, and not otherwise.
(2) This paragraph applies to every employment except in so far as its application is excluded by or under any provision of this Schedule.
Qualifying period and upper age limit
10. … paragraph 4 above does not apply to the dismissal of an employee from any employment if the employee—
(a) was not continuously employed for a period of not less than 26 weeks ending with the effective date of termination, or
(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;".
Paragraph 4 gives every employee the right not to be unfairly dismissed by an employer, and enacts that the remedy for an employee so dismissed shall be by way of complaint to an industrial tribunal. That right is, however, expressed in paragraph 4 as being subject, amongst other things to its exclusion by either of the two exceptions set out in paragraph 10. The first exception lays down the minimum duration of an employee's employment before he can complain of unfair dismissal, and is irrelevant to this appeal. The second exception, upon which everything depends, lays down the maximum ages of an employee beyond which in certain circumstances, a claim for unfair dismissal cannot be entertained.
When an employee reaches the age which, in the undertaking in which he is employed, is the normal retiring age for an employee holding the position which he held, his employment may be terminated on his reaching that age. No claim could reasonably be entertained for his alleged unfair dismissal on or after that date. On the other hand I can discover no reason to justify why before that date arrives the employee should be deprived of his right not to be unfairly dismissed. There are, as the Legislature no doubt realised, very many occupations in which there is a normal retiring age at which the employee to whom it applies normally retires. That, in my view, is why the Legislature put in the forefront of paragraph 10(b) the normal retiring age as the age beyond which a claim for...
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Waite v Government Communications Headquarters
...of the National Industrial Relations Court) suggested that "normal retiring age" meant the usual age at which men retire. In Nothman v. Barnet Council (1978) ICR 336, this Court held that that was not the correct interpretation. The words "normal retiring age" bear the meaning which Lord Ju......
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...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. Th......