Evbenata v South West London and St George’s Mental Health NHS Trust

Under the repealed retirement-dismissal scheme, the continuing notification duty in paragraph 4 of Schedule 6 to the Employment Equality (Age) Regulations 2006 required the employer to give the same substantive notification as paragraph 2. This included expressly stating that any request to continue working had to be made under paragraph 5. Failure to comply with that duty made a retirement dismissal automatically unfair under section 98ZG(2)(a) of the Employment Rights Act 1996, even where the employer had otherwise followed the statutory procedure and the dismissal would have been fair under ordinary principles. The Employment Tribunal therefore erred by considering only ordinary unfair dismissal and failing separately to determine compliance with paragraph 4.

The Claimant, a nurse employed by the Respondent, was compulsorily retired under the statutory retirement-dismissal scheme. The Employment Tribunal found that the retirement notice failed expressly to refer to paragraph 5 of Schedule 6, but concluded that this breached only paragraph 2 and did not make the dismissal automatically unfair. It dismissed the unfair-dismissal claim after applying ordinary section 98 principles.

The appeal concerned whether the Tribunal had to consider the continuing notification duty under paragraph 4 and, if that duty was breached, whether section 98ZG(2)(a) required the dismissal to be treated as automatically unfair.

1. Appeal allowed. The Employment Tribunal made a material error of law by failing to consider separately whether the Respondent had complied with paragraph 4 of Schedule 6 and section 98ZG(2)(a) of the Employment Rights Act 1996.
2. Following R & R Plant (Peterborough) Ltd v Bailey [2012] EWCA Civ 410, paragraph 2 required an employer expressly to notify the employee that the statutory request to continue working arose under paragraph 5. Paragraph 4 imposed a continuing duty to notify the employee in writing “as described in paragraph 2(1)”. The content of the two duties was therefore the same; only the permitted timing differed.
3. Failure to comply with paragraph 2 did not itself determine the reason for dismissal. Under sections 98ZD(5) and 98ZF of the Employment Rights Act 1996, the Tribunal had to determine the reason or principal reason, giving particular regard to compliance with paragraph 4 and the remaining procedural requirements.
4. Section 98ZG imposed a stricter consequence. Where retirement was the reason or principal reason, the employee was automatically unfairly dismissed if the employer failed to comply with paragraph 4, paragraphs 6 and 7, or paragraph 8 of Schedule 6. The extent of procedural compliance was not a substitute for compliance with those obligations.
5. On the Tribunal’s findings, the Respondent had not subsequently supplied a valid paragraph 4 notification. The dismissal was therefore automatically unfair under section 98ZG(2)(a), notwithstanding that the remaining findings demonstrated that the dismissal would otherwise have been fair.
6. A finding of automatic unfair dismissal was substituted, together with a basic award only, the parties being left to agree the amount.

• Employment Appeal Tribunal: allowed the appeal from the Employment Tribunal sitting at London (South). The Tribunal’s decision, sent to the parties on 27 January 2014, was replaced by a finding of automatic unfair dismissal under section 98ZG(2)(a) of the Employment Rights Act 1996, with a basic award only.