Cross & Anor v British Airways Plc

For the statutory exclusion of unfair-dismissal protection at normal retiring age, the relevant age is determined objectively at the effective date of termination. A contractual retirement age is only prima facie evidence of that age and does not permanently fix it at the date of transfer. The normal retiring age is identified by reference to employees in the same position and may change before or after a transfer. The Transfer of Undertakings (Protection of Employment) Regulations 1981 preserve individual contractual rights, but do not transfer or freeze a pre-transfer statutory normal retiring age. Any later variation of employment terms that is said to be transfer-related must be assessed under the principles in Daddy’s Dance Hall. Whether later conduct is independent of the transfer is ordinarily a question of fact for the employment tribunal.

Michael Bartlett Cross and Carole Gibson were flying crew employed by British Caledonian Airways Ltd, whose undertaking was transferred under the Transfer of Undertakings (Protection of Employment) Regulations 1981 to British Airways Plc in 1988. Their BCal contracts provided for retirement at 60. On or shortly after the transfer they accepted BA contracts providing for retirement at 55, and BA later required them to retire at that age.

The Employment Tribunal held that the contracts transferred under the Regulations, but that the statutory normal retiring age did not transfer. It nevertheless entertained the claims and found the dismissals fair. The Employment Appeal Tribunal, in case EAT/0572/04/TM, held that the statutory normal retiring age was not transferable and concluded that it was 55 at the relevant dates. The central issue was whether the pre-transfer normal retiring age was preserved for the purposes of section 109 of the Employment Rights Act 1996.

1. Appeals dismissed. The Employment Appeal Tribunal was right that the statutory normal retiring age under section 109 of the Employment Rights Act 1996 was not transferred or frozen by regulation 5 of the Transfer of Undertakings (Protection of Employment) Regulations 1981.
2. Section 109 is concerned with the normal retiring age for employees in the relevant position at the effective date of termination. It is an objective and fact-sensitive concept. A contractual retirement age applicable to all or nearly all employees in a group is prima facie evidence, but the presumption is rebuttable. The court must consider what employees of all ages in the group could reasonably regard as their normal retiring age on the facts then known.
3. The statutory normal retiring age differs conceptually from a contractual retirement date. It is determined by the circumstances existing at dismissal, rather than at the making of the contract or the transfer. Accordingly, regulation 5 preserves contractual rights and liabilities under the transferred contract, but contains nothing capable of transferring a statutory normal retiring age which may change over time.
4. The relevant age for both appellants was therefore 55, the age applicable at the time of their dismissals to flying crew in the same position throughout BA. No reference to the European Court of Justice was required because the construction of section 109 and regulation 5 was sufficiently clear.
5. Auld LJ expressed an alternative, non-decisive view on the post-transfer issue. If a pre-transfer normal retiring age could transfer, the effect would be suspensory rather than permanently freezing it. A later contractual or factual change independent of the transfer could affect the position. Whether such conduct was independent of the transfer would ordinarily be a question of fact. On the findings, neither appellant had engaged in later conduct bearing on retirement that was independent of the transfer. This view was non-decisive.
6. Laws LJ and Richards LJ agreed with Auld LJ.

• Court of Appeal (Civil Division) — appeals dismissed. The court upheld the Employment Appeal Tribunal’s conclusion that the statutory normal retiring age was not transferable under regulation 5.
• Employment Appeal Tribunal — upheld the Employment Tribunal’s dismissal of the unfair-dismissal claims on the decisive issue, holding that the statutory normal retiring age was not a transferable right and was 55 at the relevant dates.
• Employment Tribunal — found that the contracts transferred under the Regulations, but held that the statutory normal retiring age did not transfer. It nevertheless found the dismissals fair.