Jayawardane v Customs & Excise

For the statutory exclusion from unfair-dismissal protection based on normal retiring age, the contractual retiring age is not determinative in every case. It is prima facie the normal retiring age, but evidence may show that it has been superseded, regularly departed from, or abandoned. The relevant question is the normal retiring age for employees holding the relevant position, assessed objectively and without treating the employee’s personal expectation as decisive. Where the contractual retiring age is a definite age below which employees cannot be required to leave, and there is no evidence of regular retirement at a higher age, the contractual age may be treated as the normal retiring age. In deciding contractual retirement age, tribunals may rely on staff-handbook provisions forming part of the employee’s contractual entitlement.

The appellant, a Band 6 executive officer employed by HM Customs & Excise, was dismissed at age 60. He claimed unfair dismissal under section 94 of the Employment Rights Act 1996. The Employment Tribunal held that his contractual and normal retiring age was 62, so the statutory exclusion did not apply.

The Employment Appeal Tribunal allowed the Commissioners’ appeal, held that the Tribunal had erred in treating contractual and normal retiring age as necessarily identical, and remitted the case to a fresh tribunal. The Court of Appeal considered whether the Tribunal had made an error of law and whether its finding of a contractual retiring age of 62 was open on the evidence.

1. Appeal allowed. The order of the Employment Appeal Tribunal was discharged and the Employment Tribunal’s decision was restored, with costs.
2. The Employment Tribunal had not erred in law by concluding that the normal retiring age was 62. Although the Tribunal referred to reasonable expectation or understanding, it directed itself to the normal retiring age, not to the contractual retiring age. The relevant expectation is objective and concerns employees holding the relevant position, rather than the appellant’s personal expectation.
3. Under [1983] 2 AC 714, the contractual retiring age is prima facie the normal retiring age, but that presumption can be displaced by evidence that employees in the relevant position are regularly retired at a higher age which they reasonably regard as normal. If the contractual age has been abandoned and employees retire at varied higher ages, there may be no normal retiring age, in which event the statutory alternatives apply.
4. The Tribunal was entitled to find on the documents that 62 was the contractual retiring age. The staff handbook stated that Band 6 employees could not be required to leave before 62. The qualifications concerning health and efficiency were exceptions to that contractual age, not evidence that the contractual age was merely the minimum retiring age. The Commissioners alone were responsible for deciding whether those qualifications were satisfied.
5. There was no evidence that Band 6 employees remained in employment beyond 62. On the finding that 62 was contractual, statistics concerning retirement at or after age 60 were therefore irrelevant to the normal retiring-age issue.
6. The approach in Hughes v Department of Health and Social Security [1985] 1 AC 776 confirmed that the contractual retiring age is the age at which employees could be compelled to retire. The staff handbook supplied that answer here.

• Court of Appeal (Civil Division) — allowed the appeal, discharged the Employment Appeal Tribunal’s order and restored the Employment Tribunal’s decision.
• Employment Appeal Tribunal — on 2 December 2002, allowed the Commissioners’ appeal, found an error of law in the Tribunal’s reasoning and remitted the case to a fresh tribunal.
• Employment Tribunal — held that the normal and contractual retiring age for a Band 6 officer was 62 and that the appellant therefore retained the right not to be unfairly dismissed.