Nothman v Barnet London Borough Council
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1977 |
| Date | 1977 |
| Year | 1977 |
| Court | Employment Appeal Tribunal |
Industrial Relations - Unfair dismissal - Excluded classes - Woman teacher - Contractual retiring age for teachers of 65 - Employee dismissed at 61 - Whether 65 “normal retiring age” - Whether woman over 60 excluded regardless of normal retiring age -
Paragraph 10 of Schedule 1 to the Trade Union and Labour Relations Act 1974 provides that the right to bring a complaint of unfair dismissal under paragraph 4:
“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 65, or, if a woman, attained the age of 60.”
The contracts of employment of teachers engaged by the respondent employers provided for automatic retirement at 65. When the employee, a woman teacher, was dismissed at the age of 61, she brought a complaint of unfair dismissal. The industrial tribunal held, on a preliminary issue, that it had no jurisdiction to hear the complaint as the employee was precluded from bringing a complaint of unfair dismissal by paragraph 10 (b) of Schedule 1 to the Trade Union and Labour Relations Act 1974.F1 The Employment Appeal Tribunal, dismissing the employee's appeal, held that paragraph 10 (b) presented a double age barrier to dismissed employees; and that, although the employee had established that she had not reached the “normal retiring age,” she could not surmount the second barrier which provided an upper ago limit of 60 for women.
On appeal by the employee: —
Held, allowing the appeal, that the normal retiring age in any particular profession was the age at which a person must or should retire and the second part of paragraph 10 (b) applied only when there was no normal retiring age (post, pp. 343D–E, 344G–H, 345H–346A, 347A); that the normal retiring age was 65 for a person in the employee's position and that, accordingly, the employee, not having reached that age, was not excluded from pursuing her complaint of unfair dismissal.
The following cases are referred to in the judgments of the Court of Appeal:
Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. [
Ord v. Maidstone and District Hospital Management Committee [
The following additional cases were cited in argument in the Court of Appeal:
Barrel Plating & Phosphating Co. Ltd. v. Danks [
Inland Revenue Commissioners v. Hinchy [
The following case is referred to in the judgment of the Employment Appeal Tribunal:
Ord v. Maidstone and District Hospital Management Committee [
Appeal from an industrial tribunal sitting at London.
The employee, Miss Miriam Nothman, appealed from a decision of the industrial tribunal on January 26, 1977, that they had no jurisdiction to hear her complaint that she had been unfairly dismissed by her employers, Barnet London Borough Council. The employee appealed on the ground that the tribunal had erred in law in their construction of paragraph 10 (b) of Schdule 1 to the Trade Union and Labour Relations Act 1974.
The facts are stated in the judgments of the Employment Appeal Tribunal and Lord Denning M.R.
The employee in person.
David Woolley for the local authority.
July 25. Kilner Brown J. read the following judgment of the appeal tribunal. This is an appeal by Miss Nothman, the employee, from the unanimous decision of an industrial tribunal held at London on January 26, 1977. On that occasion the tribunal concluded that they were bound to apply the provisions of paragraph 10 (b) of Schedule 1 to the Trade Union and Labour Relations Act 1974 and that as those provisions excluded the employee's right to bring an application for unfair dismissal under paragraph 4 of Schedule 1 they had no jurisdiction to consider her claim on the merits.
Paragraph 10 excludes the right to apply under paragraph 4 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 65, or, if a woman, attained the age of 60 …”
This sub-paragraph is a repeat, word for word, of similar provisions in section 28 of the
“Clearly there is a need for compulsory retirement of all employees at some age or in some circumstances and such a retirement at the appropriate time will be both fair and reasonable. However, it is a fact, that for many, retirement is most unwelcome. For them its very finality breeds discontent. From this it is but a short step to a deepseated conviction that they have been unfairly treated. The existence of a right to complain to an industrial tribunal might well make employers more sensitive to the feelings of their employees and at the same time remove the sense of injustice which comes from nursing an imagined wrong for which there is no remedy. Parliament therefor may wish at some stage to consider whether it would not be better to treat the attainment of retiring age as a circumstance capable of justifying a dismissal rather than as a reason for denying an employee the right to complain of having been unfairly dismissed.”
It is an unfortunate fact that Parliament took no heed and re-enacted the provisions unchanged in Schedule 1 to the Trade Union and Labour Relations Act 1974. The instant case provides as glaring an example of discrimination against a woman on the grounds of her sex as there could possibly be. The facts of this case point to a startling anomaly. The normal retiring age in the teaching profession is the same for men and women and may fluctuate between 60 and 65. But the applicant in this case, being a woman teacher aged 61, may find herself shut out from a claim for unfair dismissal whereas her male colleagues are not excluded until they are 65. Clearly someone has a duty to do something about this absurd and unjust situation. It may well be, however, that there is nothing we can do about it. We are bound to apply provisions of an Act of Parliament however absurd, out of date and unfair they may appear to be. The duty of making or altering the law is the function of Parliament and is not, as many mistaken persons seem to imagine, the privilege of the judges or the judicial tribunals.
It is obvious to us that the employee has a genuine sense of grievance. She, however, is not content with pious expressions of sympathy nor critical diatribes about absurd laws. She is convinced that in strict law she should not be caught by this clause purporting to slam the door in her face because she is a woman and is aged 61. With immense industry she has prepared her cause in detail. She has typed it all out and it amounts to over 30 closely typed pages of foolscap amounting at a rough calculation to more than 16,000 words. It took her the best part of two days to read it out to us. She declined our suggestion to allow us to read it at leisure in our own time. There are 200 or more documents in the bundle before us. We have been referred to 15 authorities. Out of respect for the closely reasoned argument and not merely because she is a highly intelligent, excellently qualified woman who made her home and built her career in this country after escaping from Nazi Germany, each of us has read again her submission and discussed and pondered upon her case over and over again. She must not take it amiss if we say that much of her argument appeared to be repetitious and seemed to us often to be saying the same thing in different words. Nor should she assume...
To continue reading
Request your trial
-
The indigenisation of customary law : creating an indigenous legal pluralism within the South African dispensation: possible or not?
...Magistrate paras 107-108.70 Supra.71 Supra.72 Supra.73 Bhe v Khayelitsha Magistrate paras 137-146.74 Notham v London Borough of Barnet [1978] 1 WLR 220. 75 Bhe v Khayelitsha Magistrate para 147.76 Recognition of Customary Marriages Act 120 of Indigenisation of customary law 63marriages.77 T......