Waite v Government Communications Headquarters

For unfair dismissal purposes, a contractual retirement age is presumed to be the normal retiring age where it applies to all or nearly all employees holding the relevant position. The presumption may be displaced by evidence of a regular practice creating a reasonable expectation of retirement at a higher age.

The inquiry is not purely statistical. If practice establishes a definite higher age, that becomes the normal retiring age. If the contractual age has merely been abandoned and employees retire at various later ages, there is no normal retiring age and the statutory alternatives apply. Guidance that an employee “should” be retained ordinarily expresses policy rather than a contractual right.

A civil servant was compulsorily retired from his position at the age of 60½ and immediately re-employed in a lower grade. He complained of unfair dismissal. The employer accepted that the dismissal was unfair but contended that the industrial tribunal lacked jurisdiction because he had attained the normal retiring age within Schedule 1 paragraph 10(b) of the Trade Union and Labour Relations Act 1974.

The industrial tribunals and the Court of Appeal rejected his case. Before the House, the principal issue was whether the contractual retirement age of 60 conclusively determined the normal retiring age, or whether the employer's practice could establish a different age. A subsidiary issue concerned whether paragraph 10442 of the Civil Service Pay and Conditions of Service Code gave short-service officers a right to remain until completing 20 years' service or reaching 65.

1. Appeal dismissed unanimously. Lord Fraser of Tullybelton delivered the leading speech. Lord Keith of Kinkel, Lord Scarman, Lord Bridge of Harwich and Lord Templeman agreed with his reasons.

2. Per Lord Fraser, a contractual retirement age applicable to all or nearly all employees holding the relevant position creates a presumption that it is the “normal retiring age” for Schedule 1 paragraph 10(b) of the Trade Union and Labour Relations Act 1974. It does not determine the question conclusively. The rigid contractual approach adopted by the Court of Appeal in Nothman v Barnet London Borough Council [1978] ICR 336 gave “normal” an artificial meaning and was rejected.

3. Per Lord Fraser, the proper inquiry is the reasonable expectation or understanding of employees holding the position at the relevant time. The inquiry is not merely statistical. Evidence that employees are regularly retained may show that the contractual age has been superseded by a definite higher age. Alternatively, it may show only that the contractual age has been abandoned. In the latter situation, if retirement occurs at various higher ages, there is no normal retiring age and the statutory alternatives of 65 for a man and 60 for a woman apply.

4. Per Lord Fraser, the evidence did not permit the contractual age of 60 to be displaced. Of 41 comparable officers retiring or regressing during the relevant six years, 30 did so at 60 and 11 were retained beyond that age for reasons which were unknown. Retention of slightly more than one quarter of the group fell well short of proving that the contractual age had been abandoned or regularly departed from. No tribunal applying the law correctly could therefore find that the industrial tribunal had jurisdiction.

5. Per Lord Fraser, paragraph 10442 of the Civil Service Code did not give a short-service officer a contractual right to retention. “Should” did not mean “must”. Read with the provisions reserving retirement decisions to departmental discretion, the paragraph instructed decision-makers about general policy. Its reference to officers having “special claims” to retention was inconsistent with an enforceable right. The contractual retirement age was therefore 60.

6. The Court of Appeal's order was affirmed. The appeal was dismissed, with no order for costs in the House or the Court of Appeal.

1. House of Lords: The Court of Appeal's order was affirmed and the appeal dismissed unanimously. No order was made for costs in either appellate court.

2. Court of Appeal: By an order dated 20 December 1982, the court rejected the appellant's case. That order was affirmed by the House of Lords.

3. Industrial tribunals: The tribunals rejected the appellant's contention concerning his original temporary employment and held that the tribunal lacked jurisdiction. The appellant no longer challenged the former conclusion before the House of Lords.