Bailey v R & R Plant (Peterborough) Ltd

An employer’s duty to notify an employee of the statutory right to request continuation of employment beyond compulsory retirement includes informing the employee of the essential conditions for making a valid request. Where the legislation requires the request to be in writing and to state that it is made under the relevant paragraph, those requirements are mandatory. A general invitation to apply to continue working is insufficient. Failure to give the required notice prevents the statutory deeming provision from applying. The tribunal must then determine the actual reason for dismissal and assess fairness under the applicable retirement-dismissal provisions.

The employee was dismissed on reaching his normal retirement age of 65. Six months before retirement, the employer wrote that he had to retire but could apply in writing to continue working. The employee replied in writing that he wished to continue full-time employment, but his letter did not state that it was made under paragraph 5 of Schedule 6 to the Employment Equality (Age) Regulations 2006.

The Employment Tribunal held that the employee had not made a valid statutory request and dismissed his unfair-dismissal claim. The appeal concerned whether the employer’s letter satisfied paragraph 2(1)(a), and whether the employee’s letter satisfied paragraph 5(3).

1. Appeal allowed. The employee was unfairly dismissed and was awarded a basic award of £4,455.
2. The right under paragraph 5 of Schedule 6 to the Employment Equality (Age) Regulations 2006 was a statutory procedural right. Its exercise could be subject to conditions enabling the employer to identify a valid request and operate the prescribed procedure.
3. Paragraph 5(3) imposed mandatory requirements. A request had to be in writing and had to state that it was made under paragraph 5.
4. Paragraph 2(1)(a), read in the context of the statutory procedural right, required the employer to inform the employee of the essential conditions for making a valid request. It was insufficient merely to say that the employee could ask not to retire. The employer could comply by reproducing or summarising the requirements, or by providing a suitable form.
5. The employer’s letter did not explain the paragraph 5(3) requirements and therefore failed to comply with paragraph 2. Section 98ZD(2) consequently did not deem retirement to be the reason for dismissal, although the tribunal could still find that retirement was the actual reason.
6. On the facts found, retirement was plainly the reason for dismissal. The employer had also failed to comply with the relevant notification duties under paragraphs 2 and 4 of Schedule 6. The dismissal was therefore unfair under section 98ZG(2)(a).
7. The tribunal’s alternative observations did not require reconsideration. The EAT interpreted Schedule 6 by ordinary common-law principles and found it unnecessary to decide the European-law arguments.

1. Employment Appeal Tribunal: allowed the appeal against the Employment Tribunal’s judgment dated 29 April 2010, substituted a finding of unfair dismissal and awarded £4,455.
2. Employment Tribunal: dismissed claims for unfair dismissal, wrongful dismissal and age discrimination.