Tajul - Arfeen v Health Protection Agency

A retirement dismissal regulated by the former statutory age-dismissal procedure was unfair where the employer's notice did not expressly identify the employee's right to request non-retirement under paragraph 5 of Schedule 6 to the Employment Equality (Age) Regulations 2006. Section 98ZG of the Employment Rights Act 1996 required that consequence.

A procedural finding of unfair dismissal does not require a compensatory award where the tribunal's findings make it inevitable that the employee would in any event have been fairly retired on the dismissal date. The Employment Appeal Tribunal will not ordinarily entertain a wholly new factual case on appeal where evidence should have been directed to it before the Employment Tribunal.

The claimant, an associate specialist doctor, was retired at age 65 under the respondent's retirement policy. The Employment Tribunal rejected his claims for unfair dismissal and unlawful deductions from wages, while upholding a separate disability-discrimination claim from which no appeal arose.

After the Tribunal's decision, the Court of Appeal decided R&R Plant (Peterborough) Ltd v Bailey [2012] EWCA Civ 410. The parties accepted that the retirement notice in this case did not comply with the statutory requirement identified in that decision. The appeal therefore concerned the consequence for unfair dismissal and remedy, and whether the Tribunal had erred in rejecting the asserted underpayment for an additional supporting professional activity.

1. The appeal was allowed on the unfair-dismissal ground. Applying R&R Plant (Peterborough) Ltd v Bailey [2012] EWCA Civ 410, the notice was deficient because it did not specifically identify the statutory right to request non-retirement under paragraph 5 of Schedule 6 to the Employment Equality (Age) Regulations 2006. The failure to comply precisely with the procedure required the dismissal to be treated as unfair under section 98ZG of the Employment Rights Act 1996. The Employment Tribunal's rejection of that claim was set aside.

2. The Appeal Tribunal determined remedy without remission. The parties agreed a basic award of £5,250. The Tribunal's findings established that the respondent had a policy of retirement at 65, had considered the claimant's request to continue working, and had fairly determined his appeal against refusal. It was therefore inevitable that he would have been fairly dismissed on the same date even if a compliant notice had been given. No compensatory award was payable.

3. The appeal on unlawful deductions from wages was dismissed. The claimant's argument that the job plan provided for 11 programmed activities plus two supporting professional activities was a wholly new factual case which had not been pursued before the Employment Tribunal. In any event, the job plan was non-contractual, no concluded agreement for the asserted additional paid activity had been shown, and the Tribunal was entitled to make its factual findings on the evidence. The alleged errors did not disclose an error of law.

The unfair-dismissal claim was allowed and compensation of £5,250 awarded. The deductions appeal was dismissed.

• Employment Appeal Tribunal: Allowed the appeal against dismissal of the unfair-dismissal claim, applying R&R Plant (Peterborough) Ltd v Bailey [2012] EWCA Civ 410, and awarded £5,250. Dismissed the appeal concerning unlawful deductions from wages.
• Employment Tribunal at Reading: Rejected the claims for unfair dismissal and unlawful deductions from wages. It upheld a disability-discrimination claim, which was not appealed.