Copeland v E Coomes (Holdings) Ltd

A retirement notice which does not comply with paragraph 2 of Schedule 6 to the Employment Equality (Age) Regulations 2006 cannot satisfy the notification condition in regulation 5 of the Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011. The same notice requirement has the same meaning when determining both the transitional age-discrimination exemption and automatic unfair dismissal.

Where that condition is not met, the statutory savings do not preserve paragraph 8 of Schedule 9 to the Equality Act 2010 or section 98ZG of the Employment Rights Act 1996. A tribunal also errs by relying on repealed regulation 30 of the 2006 Regulations. A retirement dismissal is therefore subject to the ordinary age-discrimination and unfair-dismissal provisions.

The Claimant, a betting-shop branch manageress, was dismissed in August 2011. The parties agreed that the reason for dismissal was retirement. Her employer's retirement letter stated that she could request to continue working, but did not state that a request had to be made under paragraph 5 of Schedule 6 to the Employment Equality (Age) Regulations 2006.

The Employment Tribunal dismissed the age-discrimination claim by applying regulation 30 of the 2006 Regulations. It found the Claimant automatically unfairly dismissed under section 98ZG of the Employment Rights Act 1996. It held that a purported, though defective, retirement notification was sufficient to engage the transitional saving in regulation 5 of the Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011.

The Claimant appealed the dismissal of her discrimination claim. The Respondent cross-appealed the automatic-unfair-dismissal finding. The central issue was whether the defective notice engaged the 2011 transitional saving provisions.

1. Appeal and cross-appeal allowed. The Employment Tribunal erred in treating regulation 30 of the Employment Equality (Age) Regulations 2006 as excluding the age-discrimination claim. Regulation 30 had been repealed from 1 October 2010, save for the preserved schedules, by Schedule 27 to the Equality Act 2010 and the commencement order.

2. The Court of Appeal's construction in R and R Plant (Peterborough) Ltd v Bailey [2010] EWCA Civ 410 governed the notice requirement. A paragraph 2 notice had to tell the employee of the right to request not to retire under paragraph 5 of Schedule 6. The employer's letter did not do so, and no compliant notification under paragraph 2 or 4 had been given.

3. Regulation 5(1) of the Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 required notification under paragraph 2 or 4. There was no basis for giving that expression a different and less exacting meaning in the transitional regulations. The saving provisions therefore did not apply. The employer could not rely on paragraph 8 of Schedule 9 to the Equality Act 2010, and section 98ZG of the Employment Rights Act 1996 was not preserved.

4. The agreed retirement dismissal was age discrimination under section 13 of the Equality Act 2010 unless objectively justified as a proportionate means of achieving a legitimate aim. The automatic-unfair-dismissal finding had to be set aside. The Respondent had reserved a possible case of some other substantial reason, which the Tribunal had not determined.

5. The age-discrimination and unfair-dismissal claims were remitted to a differently constituted Employment Tribunal for determination under section 13 of the Equality Act 2010 and section 98 of the Employment Rights Act 1996.

• Employment Appeal Tribunal: allowed the Claimant's appeal and the Respondent's cross-appeal. It set aside the Employment Tribunal's dismissal of the age-discrimination claim and its finding of automatic unfair dismissal.
• Employment Tribunal: dismissed the age-discrimination claim under regulation 30 of the Employment Equality (Age) Regulations 2006 and found automatic unfair dismissal under section 98ZG of the Employment Rights Act 1996.