Wall v British Compressed Air Society

The central issue was whether an employee who holds a unique position within an undertaking can have a "normal retiring age" for the purposes of section 109(1)(a)(i) of the Employment Rights Act 1996. The Court of Appeal held that a unique employee may have a normal retiring age and that, where the contract of employment provides a retiring age, that contractual retiring age is prima facie the normal retiring age for that employee unless rebutted by evidence (applying the approach in Waite v Government Communications Headquarters). The court rejected earlier Employment Appeal Tribunal decisions (Age Concern Scotland v Hines and Dormers Wells Infant School v Gill) to the extent that they held a class of one could never have a normal retiring age. The outcome turned on statutory interpretation of s109 together with s235(1) defining "position", and policy considerations about reasonable expectation of compulsory retirement.

Background and nature of the claim: The respondent, Mr Wall, a former Director-General of the appellant British Compressed Air Society, brought a complaint of unfair dismissal. BCAS relied on section 109 of the Employment Rights Act 1996 to contend Mr Wall was excluded from protection because he had reached the statutory upper age limit. The Employment Tribunal and the Employment Appeal Tribunal proceeded on two agreed assumptions: that Mr Wall had a contractual retirement age of 70 and that his post was unique (a "class of one"). The preliminary issue for determination was whether a unique employee could have a "normal retiring age" within s109(1)(a)(i).

Procedural posture: The Employment Tribunal, bound by prior EAT authority, answered the issue in favour of the employer. The EAT (Rimer J) allowed Mr Wall's appeal and remitted the unfair dismissal complaint to the Employment Tribunal. BCAS appealed to the Court of Appeal.

Issues framed by the court:

• Whether the word "normal" in s109(1)(a)(i) requires the existence of comparators so that a class of one cannot have a normal retiring age.
• If not, whether a contractual retiring age for a unique post can constitute the normal retiring age for s109 purposes.

Court’s reasoning and conclusions: The leading authority on the meaning of "normal retiring age" (Waite v Government Communications Headquarters) establishes that a contractual retiring age is prima facie the normal retiring age for those holding the position, but the presumption may be rebutted by evidence of a different practice creating a "definite higher age" or abandonment. Applying that test, the Court of Appeal (Simon Brown LJ and Scott Baker LJ, with Evans-Lombe J dissenting) concluded that the statutory notion of a "normal retiring age" does not require comparators and that a unique employee may therefore have a normal retiring age. The contractual retiring age is the only realistic candidate for the normal retiring age of a unique post. The court found no sound policy basis to treat class-of-one employees differently; Age Concern Scotland v Hines and Dormers Wells were wrongly decided on this point. A footnote recorded that factual questions about the contractual terms (for example, any short notice provisions) might still be relevant at the merits hearing but did not affect the legal issue on appeal.

Appeal dismissed. The Court of Appeal held that an employee who occupies a unique position can have a "normal retiring age" within the meaning of section 109(1)(a)(i) of the Employment Rights Act 1996; where a contract provides a retiring age it is prima facie the normal retiring age for that employee unless rebutted by evidence. Earlier EAT decisions to the contrary were rejected. (Two judges gave the leading reasons; one judge dissented.)

Appeal from the Employment Appeal Tribunal (Rimer J) decision dated 7 February 2001. The Employment Tribunal had heard a preliminary issue on agreed assumptions (that the respondent had a contractual retirement age of 70 and occupied a unique post) and, following earlier EAT precedent, decided for the employer. The EAT allowed the respondent's appeal and remitted the matter to the Employment Tribunal; the employer appealed to the Court of Appeal ([2003] EWCA Civ 1762).