Wall v British Compressed Air Society

For the statutory upper age limit, an employee in a unique position can have a normal retiring age even though there are no comparable employees. Where the contract specifies a retiring age, that age is capable of being the normal retiring age under section 109(1)(a)(i) of the Employment Rights Act 1996. The absence of comparators does not require the employee to fall back on the statutory age of 65. In group situations, the contractual age remains subject to evidence that it has been superseded in practice or abandoned.

The British Compressed Air Society appealed from the Employment Appeal Tribunal, which had allowed D Wall’s appeal and remitted his unfair-dismissal complaint to the Employment Tribunal. The parties agreed that, for the preliminary issue, Wall had a contractual retiring age of 70 and held a unique position as Director-General. The issue was whether that contractual age could constitute a normal retiring age under section 109(1)(a)(i) of the Employment Rights Act 1996, despite the absence of comparators. The Employment Tribunal had followed Dormers Wells Infant School v Gill and ruled in favour of the Society.

1. Appeal dismissed by a majority. Simon Brown LJ gave the leading judgment and Scott Baker LJ agreed. Evans-Lombe J dissented and would have allowed the appeal.
2. Section 109(1)(a)(i) concerns the normal retiring age for an employee holding the position held by the employee. Section 235(1) defines “position” by reference to status, the nature of the work, and terms and conditions of employment taken as a whole.
3. The governing approach in Waite v Government Communications Headquarters [1983] 2 AC 714 is that the decisive question is the reasonable expectation or understanding of the relevant employees as to the age at which they could reasonably expect to be compelled to retire. For groups, a contractual retiring age is prima facie the normal age, but evidence may show that it has been superseded by a definite higher age or abandoned in favour of varied higher ages.
4. That reasoning does not require comparators in every case. A unique employee with a contractual retiring age can have a normal retiring age. For that employee, the contractual age is the relevant norm, subject to the contract genuinely supporting a reasonable expectation of employment until that age.
5. Age Concern Scotland v Hines [1983] IRLR 477 and Dormers Wells Infant School v Gill were wrongly decided. Patel v Nagesan [1995] ICR 988 did not decide the present issue because the unique employee there had no contractual retiring age. The availability of a common-law wrongful-dismissal claim did not justify different treatment for unfair-dismissal purposes.
6. The appeal was dismissed. Whether Wall’s contract in fact gave him a genuine retiring age of 70, including in light of any notice provision, remained for determination at the merits hearing.

• Court of Appeal (Civil Division): Appeal by the British Compressed Air Society dismissed by a majority; the Employment Appeal Tribunal’s decision was upheld.
• Employment Appeal Tribunal: Allowed Wall’s appeal from the Employment Tribunal and remitted his unfair-dismissal complaint for determination on the merits.
• Employment Tribunal: At a preliminary hearing, decided the statutory issue in favour of the Society on the agreed assumptions that Wall had a contractual retiring age of 70 and held a unique position.