Compass Group plc v Ayodele

An employer considering an employee’s request to defer retirement must genuinely consider it. The duty is satisfied by a relatively limited procedure, and the employer need not give reasons or determine the request on its merits, but a policy against extensions must allow genuine exceptions. A pre-determined refusal is not consideration within Schedule 6. In assessing compensation for an unfair retirement dismissal, ordinary Polkey principles apply. The employee establishes prima facie loss by proving the unfair dismissal. If the employer contends that employment would probably have ended earlier, it must raise that issue and provide supporting evidence.

The claimant, employed as a kitchen porter, requested an extension after being notified that he would be retired at 65. His manager and the appeal manager treated the company’s retirement policy as inflexible and regarded the outcome as predetermined. The Employment Tribunal found that the request had not been genuinely considered and awarded compensation based on two years’ lost earnings.

The employer appealed against liability and remedy. The central issues were whether Schedule 6 required genuine consideration in good faith and whether a reduction in compensation should be made for the possibility that the claimant would have been retired despite a fair procedure.

1. Liability. The appeal was dismissed. The statutory duty to consider a request under paragraph 6 of Schedule 6 necessarily required genuine consideration, or consideration in good faith. That conclusion followed from the natural meaning of the word consider and did not add words to the legislation.
2. The statutory scheme imposed no onerous obligation to accept a request, give reasons for refusal, or permit a merits challenge. An employer could adopt a policy of refusing extensions, provided that it remained a policy and not an inflexible rule, so that exceptions could be considered. The managers’ admissions showed that the claimant’s meetings were meaningless formalities and that no exception was possible. The employer had therefore failed to comply with paragraphs 7 and 8 of Schedule 6.
3. Remedy. Ordinary compensation principles applied to a dismissal found unfair under section 98ZG(2) of the Employment Rights Act 1996. The employee’s proof of unfair dismissal established prima facie loss of earnings. If the employer wished to contend that the employment would have ended earlier, including because the extension would have been refused after proper consideration, it had to put that issue in dispute and support it with evidence.
4. The employer had neither adduced such evidence nor made submissions on the issue. The Tribunal was therefore entitled to assess loss by reference to the claimant’s evidence that he wished to work for a further two years. The remedy appeal was dismissed.

• Employment Tribunal, London Central: upheld the unfair-dismissal claim, dismissed the age-discrimination claim, and awarded compensation.
• Employment Appeal Tribunal: dismissed the employer’s appeals on liability and remedy.