Johns v Solent SD Ltd.

The Court of Appeal dismissed the employer's appeal against an Employment Appeal Tribunal order staying claims for unfair dismissal and age discrimination. The court held that the Employment Tribunal Chairman was wrong to strike out the claims as having no reasonable prospect of success because that conclusion rested on unwarranted speculation about the outcome of a pending reference to the European Court of Justice (Age Concern v Secretary of State, the "Heyday" case) concerning the validity of Regulation 30 of the Employment Equality (Age) Regulations 2006 and the operation of section 98 ZG of the Employment Rights Act 1996. The court emphasised that Regulation 30 (permitting compulsory retirement at 65) may require objective justification under Directive 2000/78/EC and that, because Heyday might succeed, the claimant's domestic claims could have reasonable prospects and must not be struck out but stayed.

This appeal concerned Mrs Johns, who had been compulsorily retired at age 65 by her former employer, Solent, and brought claims for unfair dismissal and age discrimination. Solent applied to strike those claims out on the ground they had no reasonable prospect of success in light of Regulation 30 of the Employment Equality (Age) Regulations 2006 and section 98 ZG of the Employment Rights Act 1996, which provided a statutory route to compulsory retirement at 65.

The Employment Tribunal Chairman (hearing by telephone) accepted the employer's reliance on the Advocate General's opinion and the decision in Palacios de la Villa v Cortefiel Servicios SA to conclude the claimant had only a remote chance of success and ordered strike-out. The claimant appealed to the Employment Appeal Tribunal where Nelson J allowed the appeal and ordered the claims to be stayed pending determination of Age Concern v Secretary of State (the Heyday reference) before the European Court of Justice. Solent appealed to the Court of Appeal.

The Court of Appeal analysed: (i) the domestic provisions invoked (Regulation 30 and sections 98 ZA–ZG inserted into the Employment Rights Act 1996); (ii) the relevance of Directive 2000/78/EC, in particular the possibility that direct discrimination on grounds of age may be objectively and reasonably justified; and (iii) the significance of the Heyday reference and the earlier Palacios decision. The court concluded the tribunal chairman had insufficient material to pre‑judge Heyday and that Palacios was not sufficiently analogous. Because Heyday might result in Regulation 30 being struck down as incompatible with the Directive (and thus render the domestic statutory defence unavailable), Mrs Johns' claims had reasonable prospects of success and could not properly be struck out. The court therefore dismissed the employer's appeal and upheld the stay. The judgment also criticised deciding complex strike-out issues by telephone hearing.

Appeal dismissed. The Court of Appeal concluded that the tribunal chairman's strike-out was perverse because it relied on speculative conclusions about the pending Heyday reference and Palacios; because Heyday might succeed rendering Regulation 30 incompatible with Directive 2000/78/EC, the claimant's case had reasonable prospects and ought to be stayed rather than struck out.

The claim was before an Employment Tribunal Chairman (Southampton) who struck out the claimant's claims. The claimant successfully appealed to the Employment Appeal Tribunal (Nelson J), which set aside the strike-out and ordered a stay pending the ECJ reference in Age Concern v Secretary of State (the Heyday case). Solent appealed to the Court of Appeal, which dismissed the appeal. (Permission to appeal was granted by Nelson J.)