Bailey v R & R Plant (Peterborough) Ltd [2011] EWCA Civ 1487

Renewed application to appeal by respondent finding that the claimant had been unfairly dismissed in relation to their procedure under the age equality regulations.

The facts and background to the claims are set out with the [EAT judgment here](). In this application. Mummery LJ first finds that the point raised by the employers is undoubtedly one of law concerning the proper construction of Schedule 6 to the Employment Equality (Age) Regulations 2006 in particular paragraph 2(1). The issue was whether the letter written to the employee, informing him of his retirement and right to request to work further, complied with the duties set out in the Schedule.

Rimer LJ, in dismissing the application on paper, stated that it was obvious that the letter did not. However counsel for the respondents argued that the EAT's interpretation, in summary: went beyond the plain wording of the text; imposed a specific stringent formal test that is not obvious and was paternalistic as it allowed the employee to shift the burden to the employer. He also argued that the issue was causing some concern in cases now in front of the lower courts. Mummery LJ, though stating that he did not think that the appeal had much prospect of success, does decide that there may be "some other compelling reason why the appeal should be heard" under CPR Part 52.3 (6)(b) though he only allows the application on condition that the respondent will pay the claimant's reasonable costs for the appeal.


Case No : A2/2011/1497

Neutral Citation Number: [2011] EWCA Civ 1487

IN THE COURT OF APPEAL ( CIVIL DIVISION )

ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice

Strand, London, WC2A 2LL

Tuesday, 8 November 2011

Before:

LORD JUSTICE MUMMERY

Between:

Bailey (Applicant)

- and -

R & R Plant ( Peterborough ) Limited (Respondent)

( DAR Transcript of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street, London EC4A 2DY

Tel No : 020 7404 1400 Fax No : 020 7831 8838

Official Shorthand Writers to the Court )

Mr Changez Khan (instructed by Messrs Fraser Dawbarns LLP) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented

Judgment (As Approved by the Court)

Crown Copyright ©

Lord Justice Mummery:

  1. This is a renewed application for permission to appeal. The application is made by Mr Khan, counsel for the applicant employer, R and R Plant (Peterborough) Limited.
  1. The decision which they wish to appeal is that of the Employment Appeal Tribunal on 18 May 2011 which allowed an appeal by the employee from the decision of the employment tribunal and concluded that this was a case in which the employee had been unfairly dismissed. There was then an application to this court for permission to appeal. That was dealt with on the papers by Rimer LJ on 21 July 2011. He refused permission and also refused to grant a stay.
  1. There is no doubt in my mind that the point on which the case turns and which the employer wishes to pursue in this court is one of law. The question is whether there is a real prospect of that point succeeding or whether this is a case in which, even if it has not got a real prospect of succeeding, there is a compelling reason why this appeal should be heard.
  1. The question of law concerns the proper construction of the provisions in Schedule 6 to the Employment Equality (Age) Regulations 2006 in particular paragraph 2(1). Paragraph 2(1) provides in relation to the duty of an employer to inform an employee of his retirement:

"The employer who intends to retire an employee has a duty to notify the employee in writing of:

a) the employee's right to make a request; and

b) the date on which he intends the employee to retire,

not more than one year and not less than six months before that date."

  1. In this case the employer sent a letter to Mr Michael Bailey, the employee, which purported to comply with that paragraph in the Regulations. The letter was dated 18 July 2008. Unfortunately, the letter was not included in the application bundle, but it was quoted in the decision and Mr Khan handed me a copy of the letter during the course of the hearing. The letter, which was sent by Mr Rouse, the managing director of the applicant, to Mr Bailey says this :

"Dear Michael,

As your employer and under current legislation [and I pause there to say that means the Employment Equality Age Regulations] we are required to write to you six months in advance of your 65th birthday to formally inform you that when you reach 65 years of age you have to retire from full time work.

Should you wish to continue employment beyond this date [that is beyond the age of 65] you are required to make this application to the company in writing "

  1. Now the question is whether that letter was compliant with the duty of the employer under paragraph 2(1) of the Regulations. On the face of it, it does not appear to be compliant, because what the employer is under a duty to do is to notify the employee of his right to make a request. It does not in terms notify him of anything of the kind. It notifies him that, should he wish to continue employment beyond his 65th birthday, he is required to make an application to the company in writing.
  1. There has been a disagreement between the tribunals below on this issue. The employment tribunal held that the letter was compliant with paragraph 2(1). The Employment Appeal Tribunal said it was not compliant for reasons which are given in considerable detail.
  1. Rimer LJ in his decision on the written application for permission said this:

"The applicant has in my view no prospect of success on an appeal. The question is whether its letter of 18 July 2008 complied with paragraph 2(1) of the Employment Equality (Age) Regulations 2006. It is obvious that it did not. It admittedly pointed out to the respondent that if he wished to continue employment beyond his 65th birthday, ' you are required to make this application to the company in writing'. That choice of words could be read as meaning no more than the respondent simply had to write to the applicant and ask for an extension. Paragraph 2(1) required the applicant to do more than that. It had to notify the respondent of his 'right to make a request'."

Then he goes on to explain why that does not comply. The letter in this case does not comply with the regulations.

  1. In his skeleton argument Mr Guy Sims on 17 June 2011 contested the Employment Appeal Tribunal's construction of the paragraph in the regulations. There has now been a change of counsel and Mr Khan has put in a statement under paragraph 4.14A of the practice direction, stating his essential point, and having quoted the paragraph in the regulations, disputes the interpretation of the Employment Appeal Tribunal saying this:

"The Employment Appeal Tribunal construed the paragraph 2(1) as a duty 'to inform the employee of the conditions which are essential as a valid request is to be made. Thus for example the employer must notify the employee that a request under paragraph 5 must be in writing and must state that it is made under that paragraph'. This interpretation goes too far because:

a) it goes beyond the plain wording of the text. The duty is to 'notify' the right; not a duty to 'advise on' or 'to give detailed instruction' about how properly to exercise that right;

b) it imposes a specific and stringent formal requirement on the employer even though that is neither expressed or obvious from the text; and

c) it is paternalistic. Both parties have formal duties under Schedule 6 and both have an equal opportunity to seek legal advice yet the effect of the EAT's interpretation is to allow a defaulting employee to shift the blame to his employer ('I did not comply with the formalities because you did not tell me I had to.'"

  1. In his submission the applicant's letter informed the respondent employee that he had a right to make a request which he should make in writing. It drew his attention to the current legislation. Taken in the round it was enough to put him on notice, or to notify him of his right to make a request. From that point the onus was on him to ensure that he exercise his right in accordance with the law. The consequence of that, on the applicant's interpretation of the regulations, is that the employee did not comply with paragraph 5 of the Schedule when he made his request. This is a rather unusual case in which the employer is saying that the employee did not make his request in compliance with the regulations and the employee is saying that the employer had not given him notification of his right to make a request in accordance with the regulations.
  1. As I have explained to Mr Khan my view about the ground of appeal is the same as Rimer LJ's. I do not have to endorse the interpretation of the regulations given by the EAT I simply say that, on the face of it, the employer's letter does not comply with the duty imposed on the employer by paragraph 2(1).
  1. During the course of the hearing Mr Khan has drawn my attention to another matter which is not mentioned either in the advocate's statement or in his predecessor's skeleton argument. That is the fact that this provision is giving rise to problems in other cases and there are disputes in other cases about whether letters that do not actually follow the wording of paragraph 2(1) comply with it or, putting it another way, whether it is enough to comply with paragraph 2(1) to write a letter which in substance complies with it, whatever that means. He has referred me to a case before the Liverpool employment tribunal and another case called Burgess, in which there has been a stay pending a decision on this case. This case could affect other cases where the problem arises of what an employer has to do and what an employee has to do when the employee reaches the age of 65 and the employer wants to retire him and the employee does not want to be retired. In those circumstances I pointed out to Mr Khan that I do not think that his proposed appeal has a real prospect of success, but that because Part 52.3 (6)(b) allows the court to give permission where "there is some other compelling reason why the appeal should be heard". This court exists not only to decide appeals in particular cases which may just be one-off ones, but also to decide points of law causing difficulties in tribunals and courts below. I am satisfied that in this case the difficulties that are arising for employers and tribunals in relation to the interpretation of paragraph 2(1) of the 2006 regulations, Schedule 6, would constitute a compelling reason which would enable me to grant permission to appeal.
  1. There then arises whether that permission should be granted on terms and in relation to that I should refer to a letter which was emailed to the Civil Appeals Office yesterday 7 November from Leigh Day and Co, who act for the employee. The point that they make in that letter, which has also been emailed to Mr Khan's instructing solicitors, is that there are costs implications in this court granting permissions to appeal. It correctly points out that there is a risk as to costs in relation to the employee if permission to appeal is granted and if the appeal then succeeds. What they say in the concluding part of the letter is that the employee respectfully requests that, if permission to appeal is granted, which is what I am proposing, this be done on condition that the respondent pays the reasonable costs of the claimant whatever the outcome of any appeal and that there be no order for costs against the claimant, the claimant being, I should point out in case there is any confusion, the respondent to this proposed appeal.
  1. I think there is force in that contention, in particular because of the ground on which I am granting permission, a disputed point of interpretation affecting other pending cases. What I propose to do for the reasons I have given, is to grant permission to appeal under Part 52.3 (6)(b) of the CPR and to attach a condition to the appeal that in this case it is the applicant will pay the reasonable costs of the respondent employee, whatever the outcome of the appeal and that there will be no order for costs made against the employee. I say the reason for that is that this appeal is being pursued, so far as the court is concerned, not just to resolve this case but to resolve cases affecting other employers and employees. It would not be fair to the employee that he should bear the risk of costs of having such a general question decided.

Order: Application granted (conditional).

Published: 09/12/2011 11:42

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