Jayawardane v Customs & Excise

The Court of Appeal considered whether the tribunal was correct to find that the "normal retiring age" for the appellant, a Band 6 civil servant, was 62 and therefore that section 94 of the Employment Rights Act 1996 (the right not to be unfairly dismissed) applied. The court analysed the relationship between a contractual retiring age and the statutory concept of "normal retiring age" as explained in Waite v Government Communication Headquarters and Hughes v Department of Health and Social Security. It held that a clear contractual provision capable of fixing the age before which an employee could not be required to retire will prima facie be the normal retiring age, and that the tribunal was entitled to treat the staff handbook provisions as establishing a contractual retiring age of 62 for Band 6 officers. The Employment Appeal Tribunal was therefore wrong to set aside the tribunal's decision and remit the matter.

Background and parties:

• The appellant, Mr Jayawardane, employed as an executive officer (Job Band 6) by the Commissioners of Customs and Excise, was dismissed with an effective termination date of 30 November 2000 when he was 60. He complained to an employment tribunal of unfair dismissal under section 94 of the Employment Rights Act 1996.
• The respondent relied on section 109(1) of the 1996 Act to contend that the contractual or normal retiring age applicable to the appellant was 60, and that the statutory protection did not therefore apply.

Procedural history:

• The Employment Tribunal (London South) held (10 August 2001) that the contractual retiring age for the position was 62 and therefore the appellant had the right not to be unfairly dismissed; a full merits hearing was listed.
• The Commissioners appealed to the Employment Appeal Tribunal which allowed the appeal and remitted the case to a fresh tribunal on the basis that the original tribunal erred in law in its approach to the contractual and normal retiring ages (order dated 2 December 2002).
• The Court of Appeal granted permission to appeal and heard the appellant's challenge to the EAT decision.

Issues:

• Whether the Employment Tribunal erred in law by treating the contractual retiring age as 62 and equating it with the normal retiring age;
• What evidence is required to establish a contractual retiring age and when the Waite/Hughes tests for rebutting the contractual age by established practice apply; and
• The evidential role of staff handbook provisions and statistics about retirements.

Reasoning and conclusions:

• The court reviewed the authorities: Waite establishes a presumption that a contractual retiring age will be the normal retiring age but allows rebuttal by evidence of regular practice; Hughes explains how a departmental policy communicated to employees can give a reasonable expectation that a higher age has replaced the contractual minimum.
• The Court of Appeal held that the tribunal was entitled to treat clear staff handbook provisions (which stated that employees in Job Bands 5 and 6 could not be required to leave before 62) as contractual in effect and to find a contractual retiring age of 62. If the contractual retiring age was 62, statistics showing some variation were irrelevant because there was no evidence of regular retirement after 62.
• The EAT was wrong to conclude that the tribunal had applied an incorrect methodology and to remit the case; the tribunal's conclusion was open on the evidence and lawful.

Outcome: The Court of Appeal allowed the appeal, discharged the EAT order and restored the Employment Tribunal's decision that the normal retiring age for the appellant's position was 62.

Appeal allowed. The Court of Appeal held that the Employment Tribunal was entitled on the evidence to find that the contractual retiring age for Band 6 officers was 62 and that, in those circumstances, the normal retiring age was 62. The Employment Appeal Tribunal was wrong to set aside that decision and to remit the matter.

Employment Tribunal (London South) decision dated 10 August 2001 held normal retiring age 62; Commissioners appealed to the Employment Appeal Tribunal which allowed the appeal and remitted the matter by order dated 2 December 2002; permission to appeal to the Court of Appeal granted (Clarke LJ, 26 February 2003); Court of Appeal allowed the appellant's appeal and restored the Employment Tribunal decision ([2003] EWCA Civ 1194).