Tourell v Minister For The Cabinet Office & Anor

A normal retirement age may exist even though particular employees can remain in employment for special reasons or under limited concessions. An exception does not destroy the underlying norm unless its nature is inconsistent with there being a normal retirement age. A fact-specific exception in an earlier decision should not be treated as an exclusive definition of special reasons.

Permission to appeal out of time may be refused where the delay is inadequately explained and the proposed grounds have no realistic prospect of success. A general equality policy does not become a contractual term merely because it is promulgated, and the existence of an age-related concession does not itself establish unlawful age discrimination.

Michael Tourell, a civil servant employed by Property Advisers to the Civil Estate, was retired at the normal retirement age of 60. An Employment Tribunal held that age 60 was the applicable normal retirement age and later found a breach of contract because he had not been notified of a right of appeal against the retirement decision. His other claims were dismissed.

The Employment Appeal Tribunal dismissed his appeals and later refused review applications. Mr Tourell sought permission to appeal from the EAT orders, including permission out of time. He argued that the tribunals had misapplied Waite v Government Communications Headquarters [1983] 2 AC 714 and Barclays Bank Plc v O'Brien [1994] ICR 865, and that hardship provisions discriminated against him on grounds of age.

1. Applications refused. The delay in seeking permission to appeal from the November 2000 EAT orders was inadequately explained. The applications concerning the later orders also disclosed no realistic prospect of success and no other compelling reason for an appeal.
2. The applicable rules and staff handbook established a normal retirement age of 60 for Mr Tourell's grade, subject to defined exceptions. The existence of concessions for particular employees did not prevent 60 from being the normal retirement age.
3. The approach in Waite v Government Communications Headquarters [1983] 2 AC 714 and the propositions distilled in Barclays Bank Plc v O'Brien [1994] ICR 865 supported that conclusion. The statement in O'Brien that different retirement ages for special reasons do not negate a normal retirement age was not confined to the particular facts of that case. The applicant had misunderstood the judgment.
4. The hardship procedures, which applied only to specified employees affected by the reduction in retirement age, were not shown to be arbitrary or illegal. The applicant had continued to work under the relevant terms without timely objecting to them. The tribunal was entitled to find that the 1996 Equal Opportunities in the Civil Service policy had not become an incorporated term of his contract.
5. Alleged errors of law by the tribunal could provide grounds of appeal if established, but they did not provide grounds for review of the EAT's decisions. The tribunal had carefully considered the evidence and reached conclusions expressed with lucidity and correctness.

• Employment Tribunal: Held that the applicable normal retirement age was 60. It later found a breach of contract in the failure to notify Mr Tourell of a right of appeal, while dismissing his other contractual and sex discrimination claims.
• Employment Appeal Tribunal: Dismissed the appeals on 29 November 2000 and refused review applications on 20 March 2001.
• Court of Appeal (Civil Division): Refused permission to appeal, including the out-of-time applications.