Norman v EC Harris Solutions Ltd

An employer complies with paragraph 2(1) of Schedule 6 to the Employment Equality (Age) Regulations 2006 only if the employee is told that he has a right to make a request under paragraph 5. It is unnecessary to explain every technical requirement of that request, but a general reference to a statutory right is insufficient. Substantial or purposive compliance cannot cure that omission. Where the required notice was not given before the transitional deadline, the former retirement-dismissal regime does not apply.

The claimant, employed beyond the normal retirement age of 65, was given notice of intended retirement and supplied with a request form. The notice referred to a statutory right to request continued employment but did not identify paragraph 5 of Schedule 6. The form also omitted the requirement that the request state that it was made under paragraph 5.

The Employment Tribunal held that paragraph 2(1) had been complied with and dismissed the relevant argument. The claimant appealed, also challenging the finding on normal retirement age and the treatment of a later three-month extension. The central issues were whether the notice complied with paragraph 2(1), whether 65 was the normal retirement age, and whether the later letter formed part of the statutory appeal process.

1. Appeal allowed. The Employment Appeal Tribunal substituted a finding of unfair dismissal and remitted the matter to the Employment Tribunal to assess compensation if necessary.
2. Notice under Schedule 6. R&R Plant (Peterborough) Ltd v Bailey [2012] IRLR 503 establishes that paragraph 2(1) requires an employer to inform the employee that he has a right to make a request under paragraph 5 of Schedule 6. The requirement is the minimum needed to direct the employee to the provision containing the technical requirements for a valid request.
3. The employer need not explain all those technical requirements. However, a notice referring only to a statutory right, even when accompanied by a detailed form, is insufficient unless the letter and form read together identify the right as one under paragraph 5.
4. The respondent’s notice did not comply with paragraph 2(1). The claimant’s request consequently did not comply with paragraph 5(3), and the transitional provisions preserving the former retirement regime did not apply. The Employment Tribunal’s purposive approach could not be sustained.
5. Alternative grounds. The terms and conditions and current policy identifying 65 as the normal retirement age were sufficient in the circumstances. The later June letter was plainly not a notification under paragraph 8(9)(a)(ii), since the appeal decision had already been notified on 26 April. This would independently have justified allowing the appeal.
6. Since retirement was no longer a substantial reason for dismissal under the repealed regime, a finding of unfair dismissal was inevitable.

1. Employment Tribunal: held that the employer had complied with paragraph 2(1) of Schedule 6 and determined the claim on the basis that the former retirement regime applied.
2. Employment Appeal Tribunal: allowed the appeal, substituted a finding of unfair dismissal and remitted the question of compensation.