R & R Plant (Peterborough) Ltd v Bailey

The Court of Appeal considered the construction of paragraph 2(1) of Schedule 6 to the Employment Equality (Age) Regulations 2006 and its relationship to paragraph 5 of that Schedule and the retirement provisions in the Employment Rights Act 1996 (particularly section 98 ZD and 98 ZG). The court held that paragraph 2(1), read with the interpretation provisions, requires an employer to notify the employee in writing that he has a right to make a request under paragraph 5 of Schedule 6 (ie a statutory request not to be retired). The employer is not, however, required by paragraph 2(1) to explain the technical requirements of a valid paragraph 5 request (for example that it must be in writing and state that it is made under paragraph 5). Applying that construction, the court concluded that the employer’s letter in July 2008 failed to identify the right as one under paragraph 5 and therefore did not comply with paragraph 2(1); the dismissal was accordingly unfair under the statutory scheme.

Background and facts:

• Parties: R & R Plant (Peterborough) Ltd (employer) and Michael Bailey (employee).
• Facts: Mr Bailey was given written notice on 18 July 2008 that he would be required to retire on his 65th birthday. He replied on 14 August 2008 asking to continue in employment. The employer dismissed him on his 65th birthday.

Procedural posture:

• Mr Bailey claimed unfair dismissal and breach of the Schedule 6 procedural scheme in the employment tribunal (ET). The ET dismissed his claim, holding the employer's letter complied with paragraph 2 of Schedule 6 and that Mr Bailey's reply did not satisfy paragraph 5.
• Mr Bailey appealed to the Employment Appeal Tribunal (EAT), which held the employer had not complied with paragraph 2(1) and declared the dismissal unfair (EAT decision dated 18 May 2011, UKEAT/0307/10/ZT).
• The employer appealed to the Court of Appeal (this judgment).

Issues before the Court:

• Whether the employer’s notice under paragraph 2(1) of Schedule 6 complied with the statutory duty to notify the employee of his "right to make a request" (meaning a request under paragraph 5).
• Whether the employer was required, when giving the paragraph 2(1) notice, to inform the employee of the technical requirements for a valid paragraph 5 request.

Court’s reasoning and decision:

• The court read paragraph 2(1) together with the interpretation provisions and held the employer must tell the employee that he has a statutory right to make a request under paragraph 5. That is sufficient to alert the employee to the statutory procedure and to enable him to find out the detailed requirements if he wishes to invoke it.
• The court rejected the EAT’s broader gloss that paragraph 2(1) requires the employer to set out the technical conditions for making a valid paragraph 5 request. The better construction imposes only a duty to identify the statutory right under paragraph 5, although it may be good practice for employers to give fuller information.
• Applying that interpretation, the court concluded the July 2008 letter did not comply with paragraph 2(1) because it failed to identify the right as one under paragraph 5. The employee’s August reply did not meet paragraph 5(3) requirements and was invalid, but that did not rescue the employer’s defective paragraph 2(1) notice. The dismissal was therefore unfair under the statutory scheme.

Relief sought:

• Declaration of unfair dismissal and compensation agreed between the parties.

Wider context:

• The judgment notes that the Age Regulations 2006 have since been repealed and replaced by provisions in the Equality Act 2010, but that the decision remains relevant to outstanding cases under the earlier regime.

The appeal is dismissed. The Court of Appeal held that paragraph 2(1) of Schedule 6 to the Employment Equality (Age) Regulations 2006 requires an employer to inform the employee that he has a right to make a request under paragraph 5 of Schedule 6, but does not require the employer to set out the technical requirements for a valid paragraph 5 request. The employer’s July 2008 letter failed to identify the right as one under paragraph 5 and therefore did not comply with paragraph 2(1); the dismissal was consequently unfair under the statutory scheme.

Claim first heard in the Employment Tribunal, which dismissed the employee's claim. The employee succeeded on appeal to the Employment Appeal Tribunal (decision dated 18 May 2011, UKEAT/0307/10/ZT). The employer appealed to the Court of Appeal, which dismissed the employer's appeal ([2012] EWCA Civ 410).