R & R Plant (Peterborough) Ltd v Bailey

Under paragraph 2(1) of Schedule 6 to Employment Equality (Age) Regulations 2006, an employer intending to retire an employee must notify the employee in writing of the statutory right to make a request under paragraph 5. A general invitation to apply to continue working is insufficient because it does not identify that statutory right. The employer need not explain the technical requirements for making a valid request, although doing so may be good practice. If the notice is non-compliant, the statutory deeming provision does not apply automatically; the tribunal must determine the reason for dismissal and then assess fairness under the applicable statutory scheme.

Mr Bailey, whose normal retirement age was 65, was notified that he would retire on his 65th birthday. His employer’s letter said that he had to retire but could apply in writing to continue working. Mr Bailey replied expressing his wish to remain employed, but his letter did not state that it was a request under paragraph 5 of Schedule 6.

The Employment Tribunal dismissed his unfair-dismissal claim. The Employment Appeal Tribunal, in UKEAT/0307/10/ZT, held that the employer’s notice failed to comply with paragraph 2(1), found that retirement was the reason for dismissal, and held the dismissal unfair. The appeal concerned only the proper construction of paragraph 2(1).

Dame Janet Smith gave the judgment of the court. Lord Justice McFarlane and Lord Justice Ward agreed. The appeal was dismissed.

1. Construction of paragraph 2(1). Read with the interpretation provision in paragraph 1(1), paragraph 2(1) required the employer to tell Mr Bailey in writing that he had a statutory right to request that he not be retired under paragraph 5 of Schedule 6 to the Employment Equality (Age) Regulations 2006. The employer’s letter merely stated that he had to retire and could apply in writing to continue working. It therefore failed to identify the statutory procedure and did not comply with paragraph 2(1).
2. Extent of the duty. The Employment Appeal Tribunal had gone too far in requiring the employer to explain the technical conditions for a valid paragraph 5 request. Paragraph 2(1) required identification of the statutory right, but did not require an explanation that the request had to be in writing and state that it was made under paragraph 5. Giving that additional information might be good practice, but was not a statutory obligation.
3. Effect of non-compliance. Because the employer’s notice was defective, the deeming provision in section 98 ZD(2) of the Employment Rights Act 1996 did not apply. The Employment Appeal Tribunal was entitled to conclude from the Employment Tribunal’s findings that retirement was the reason for dismissal. The dismissal was consequently to be assessed under section 98 ZG, and failure to comply with the relevant Schedule 6 duties made it unfair.

The court expressed satisfaction that the unnecessarily complex legislation had been repealed and replaced, although outstanding cases under the former scheme remained.

1. Court of Appeal (Civil Division) dismissed the employer’s appeal against the Employment Appeal Tribunal’s decision: [2012] EWCA Civ 410.
2. Employment Appeal Tribunal, UKEAT/0307/10/ZT, allowed the employee’s appeal, held that the employer had not complied with paragraph 2(1), and declared the dismissal unfair.
3. Employment Tribunal dismissed the employee’s unfair-dismissal claim, finding that the employer’s notice complied with paragraph 2(1) and that the employee had not made a valid paragraph 5 request.