Rolls Royce Plc v Unite the Union

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date14 May 2009
Neutral Citation[2009] EWCA Civ 387
Docket NumberCase No: A2/2008/2659
Date14 May 2009

[2009] EWCA Civ 387




Sir Thomas Morison, sitting as a deputy judge of the High Court on 17th October 2008

Royal Courts of Justice

Strand, London, WC2A 2LL


Lady Justice Arden

Lord Justice Wall


Lord Justice Aikens

Case No: A2/2008/2659

Rolls-Royce Plc
Unite the Union

John Bowers QC and Simon Cheetham (instructed by Messrs. Eversheds —Solicitors) for the Appellants

Peter Edwards (instructed by Messrs Rowley Ashworth —Solicitors) for the Respondents

Hearing date: 22nd January 2009

Lord Justice Wall

Lord Justice Wall :



Over the period during which our judgments in this case have been reserved, we have, both as a consequence of arguments advanced at the hearing and, latterly, at our written request, received additional submissions from both sides in this appeal. In addition, I have had the advantage of reading the judgment of the Grand Chamber of the European Court of Justice (ECJ) in the case of Birgit Bartsch v Bosche und Siemens Hausgerate (BSH) Altersfursorge GmbH (23 September 2008) and the decision of the third chamber of the ECJ in the case of The Incorporated Trustees of the National Council on Ageing (Age Concern England) v. Secretary of State for Business, Enterprise and Regulatory Reform (5 March 2009). I have also seenin draft the judgments to be given by Arden and Aikens LJJ. This judgment, accordingly, is written with all these matters in mind.


As I see it, the first question which arises in this appeal (for which permission was given by the trial judge, Sir Thomas Morison, sitting as a deputy judge of the High Court on 17 October 2008) is whether or not we should hear it.


This unusual situation comes about in the following way. On 6 June 2008, the appellant, Rolls-Royce plc (the company) brought proceedings in the Queen's Bench Division of the High Court against Unite the Union (the union) under Part 8 of the Civil Procedure Rules 1998 (CPR). The relief which the company sought was in the following terms:-

A determination of the law on redundancy selection under the Employment Equality (Age) Regulations 2006 (the Regulations). The (company) requires the court to consider and determine whether the inclusion of length of service within a selection matrix for redundancy situation would be in breach of the Regulations and therefore unlawful.


On 21 July 2008, the proceedings came before Bean J for directions. He ordered that Part 8 of the CPR applied to the claim and appended to his order an amended form of the questions to be determined by the court. Amongst other directions, he ordered that the claim was to be listed before a High Court judge with experience of employment law for a two day hearing in October 2008. It does not appear that Bean J gave a judgment before making this order: if he did, we do not have a copy of it.


On 9 October 2008, the claim was heard by Sir Thomas Morison, sitting as a deputy judge of the High Court, whose reserved judgment is dated 17 October 2008 ( [2008] EWHC 2420 (QB)). He found for the union and dismissed the claim. It is against this decision that the company seeks to appeal.


In paragraph 1 of his judgment, Sir Thomas identified the questions he had been invited to determine. They were: -

(i) Is the retention of length of service as a criterion within a selection matrix for redundancy, as contained within the collective agreements relating to the Claimant's Derby and Hucknall sites, a proportionate means of achieving a legitimate aim within Regulation 3(1) of the Employment Equality (Age) Regulations 2006?

(ii) Can the service related selection criterion properly be classified as a “benefit” within Regulation 32(1) of those Regulations? If so, does the service related selection criterion “fulfil a business need of (the company's) undertaking” within Regulation 32(2) of the Regulations?


However, Sir Thomas immediately followed the posing of these two questions with this, highly significant, paragraph:-

It will be immediately apparent that the questions which relate to achievement or fulfilment of legitimate aims or business needs are ones which, in the employment context, would normally and desirably be determined by 'an industrial jury' namely an Employment Tribunal or the Employment Appeal Tribunal (EAT). I sit as a single Judge without the benefit of the advice and wisdom which the lay Members of those Tribunals bring to questions of the sort being asked. Despite my misgivings, at the request of both counsel, I was pressed to proceed to a determination under Part 8 of the CPR. There are no issues of fact to be determined; there has been no oral evidence. I have been provided with witness statements on behalf of both parties which, essentially, set the scene for the resolution of their disputes. With considerable misgivings, I acceded to the request of both parties.


Furthermore, when granting permission to appeal, Sir Thomas did so on two bases, which he expressed in the following way:-


I remain uneasy about the procedure


This is clearly an important point for the parties.


In his witness statement filed in the proceedings, Mr Michael Stokes, a partner in the firm of solicitors instructed by the union, made a number of points about the procedure adopted by the company. Amongst them were the following: -

10. The short argument in relation to Part 8 of the CPR is that if an Employment Tribunal (ET) had been asked to consider this point, it would have been interested to hear evidence from the union side as to whether such a provision could be described as a benefit for this purpose, and then, whatever the answer to that question, to consider whether the appropriate justification test had been met.

11. On a wider and possibly more important issue raised by this claim, the court has been asked to determine either whether a service criterion is, by its very nature, discriminatory in every case, or whether this provision in this collective agreement is discriminatory in its own context.

12. I would submit that if the court is being asked the first question it should decline to answer it. Despite the fact that the ACAS code is not positive about such criteria, it is important to note that the legislators have made potential discriminatory provisions like this lawful if they can be justified. If the court were being asked the first question the (company) would be asking it to say that a service criterion of this kind could never be justified. I would respectfully submit that the court should not be answering such a sweeping question in Part 8 proceedings.

13. Alternatively, if the court were being asked the second question, namely whether the provision in this case is discriminatory in context, it should refuse to deal with the application purely on the basis that the “context” in this situation includes the whole factual background to these agreements, the effect in this workplace of this criterion, the age breakdown of the workforce itself, the purpose of such a provision, the impact of such a provision in conjunction with the other redundancy selection criteria and a host of other questions which would assist an ET in assessing whether the provision was justified.


Mr. Stokes went on to tell the court that the union intended to refer the removal of the service criterion to an ET, and that grievances had been lodged on behalf of “hundreds of employees of the company with a view to sample or test cases being referred to the ET for determination on this issue”. His argument, accordingly, was that the ET, not the High Court, was the proper forum for a discussion of age discrimination and justification in the field of employment.


As will, however, be apparent from the extract from Sir Thomas' judgment which I have set out at paragraph 7 above, the union did not persist in its objections, and Sir Thomas determined the issues placed before him. Furthermore, in this court we were faced with an agreement between the company and the union that we should hear and determine the appeal on its merits, a principal term of which was that, irrespective of the outcome, the company would pay the union's costs.


We were, however, sufficiently, concerned about the position to invite further written submissions from the parties. These we duly received after the hearing had concluded. Since I regard the point as being of considerable importance, I propose to set out the arguments in some detail.

Should we hear the appeal? The case for the company


For the company, Mr John Bowers QC reminded us that almost 100% of the “works” employees and about 70% of the “staff” employees, covered by the collective agreements at the company's Derby and Hucknall sites, were members of the union.


With regard to declaratory relief, Mr. Bowers submitted that the general circumstances in which it may be appropriate to grant a declaration were where:

(1) there was a dispute between the parties;

(2) the dispute arose from specific facts which were already in existence;

(3) the dispute was still alive; and

(4) the determination would be of some practical consequence to the parties.


Mr. Bowers relied for these propositions on the textbook Zamir & Woolf: The Declaratory Judgment, 2002, paragraphs 4.092 and 4.093; and on the decision of Neuberger J (as he then was) in the case of FSA v Rourke (2001) The Times 12 November, in which the judge had granted a declaration in civil proceedings, notwithstanding that the facts upon which he based it were capable of giving rise to a criminal liability.


Mr. Bowers accepted...

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