The claimant was approaching his 65th birthday and the respondent notified him in May 2008 that he will retire on 12 November 2008 but could request to continue working. In subsequent discussions, the claimant indicated he would like to extend his employment but no formal response was received.  in September 2008 a downturn in work meant that the claimant was laid off, and he wrote to the respondent complaining of the lack of formal response and claiming that he had been laid off because of his impending retirement. On 30 October the respondent confirmed that the request for an extension had been turned down. The claimant issued  proceeding on various grounds in the ET but by the time of this appeal the only issue was whether the claimant had suffered age discrimination.

In this judgment, Underhill J reviews ss 98ZA – ZF of the ERA 1996, which regulates fairness of dismissals for retirement on after 65, and the Employment Equality (Age) Regulations 2006. He also reviews the submissions of the claimant that, broadly, the notification of retirement had not set a specific date (the claimant had in fact retired two days after his 65th birthday) and that there should be no need to refer to the staff handbook to confirm the policy. Underhill J accepts the latter point but goes on to conclude that  the "point only matters if it is indeed the case that the letter did not state a date of retirement" which, on a natural reading it did as it stated that he would be retired on his 65th birthday; the fact that he worked until 14 November did not matter. He then goes on to state that it was clear that the reason for dismissal was fair and was not unlawful age discrimination.

_________________

Appeal No. UKEAT/0609/10/LA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 12 May 2011

Before

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT), DR B FITZGERALD MBE LLD FRSA, MR P M SMITH

MR W HOWARD (APPELLANT)

CAMPBELL'S CARAVANS LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant
MR W G WIGNALL (Solicitor)
North West Employment Law
311 Doncaster House
Moorland Gate
Chorley
Lancs
PR6 9FE

For the Respondent
Written Submissions

**SUMMARY**

UNFAIR DISMISSAL – Reason for dismissal including substantial other reason

AGE DISCRIMINATION

Dismissal of employee at the end of the week in which his 65th birthday fell, in accordance with a NRA of 65, said to be unfair and to constitute age discrimination because employer had failed, in its purported retirement notification under Schedule 6 of the Employment Equality (Age) Regulations 1996, to specify the retirement date: it had said that he would be retired "after" his 65th birthday.

**Held** that "after" did not always mean "on a date later than" and that in context the notification should be read as stating an intention to retire him on his 65th birthday (it making no difference that he was in fact retired two days later) - On the employer's alternative case that the notice constituted notification of retirement at the end of the week in which his birthday fell, by reference to the company handbook which made it clear that that was its practice, doubted whether that would have sufficed because the notification should not require reference to extraneous documents.**THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)**

1. The Respondents are a business dealing in caravans and motor homes. The Appellant started work for them in March 2002 as a technician.

1. The normal retirement age specified in the Respondents' company handbook issued to all employees, including to the Appellant, was 65. The Appellant was due to attain that age on 12 November 2008. On 22 May 2008 the Respondents wrote to him in the following terms:

"Retirement Notification

Dear Bill,

Our records indicate that you will reach the age of 65 years on 12 November 2008.

65 years is the company normal retirement age as stated in the employee handbook and contract of employment. Therefore your employment with Campbells Caravans & Motorhomes will cease after the above birthday.

In accordance with our obligations under the Employment Equality (Age) Regulations 2006 we advise you that you have the right to request to continue working after you have reached the age of 65 years.

You may request to continue to work after your retirement date and the company will give careful consideration of such a request if made.

Any request to continue to work after your retirement date should be made in writing to Mr C Greenfield no later then 3 months before the retirement date above."

1. There were discussions between the Appellant and Mr Greenfield of the Respondents in the summer of 2008 in which he asked for an extension of the retirement date notified to him in the letter of 22 May. He says that some encouraging noises were made but he received no formal response at that time.

1. On 19 September 2008 the Appellant was laid off because of a downturn in work. He was told that the lay-off was expected to last until mid October and that he would be kept in touch on a weekly basis. On 15 October 2008 he wrote to Mr Greenfield making various complaints; among them that he had never received a response to his request for an extension and that he had been singled out for lay off because he was due to retire shortly. As he put it:

"It seems that I have been singled out in the knowledge that I am to retire on 12 November 2008".

In fact, he was on the following day offered, and accepted, one day's work. Mr Greenfield replied on 29 October dealing specifically with the lay-off point; but on the following day, 30 October 2008, he wrote again in the following terms:

"RETIREMENT NOTICE

Further to the retirement notice dated 26th May 2008.

After considering your request to continue your employment I regret that at this time the company is not able to extend your employment beyond the retirement age stated in the Employees Handbook.

You will reach the age 65 on 12th November 2008, therefore your last working day will be Friday 14th Nov. 2008.

May I take this opportunity to thank you for your service and wish you a happy retirement.

We will keep your details on record and will contact you in the event that suitable work becomes available."

1. On 1 November 2008 the Appellant was asked to, and did, work another single day, but apart from that he remained laid off and did no further work. On 14 November he wrote to Mr Greenfield purporting to give a week's notice of resignation, but Mr Greenfield replied on 18 November pointing out that his employment had come to an end by way of retirement on 14 November and that his purported resignation accordingly was of no effect.

1. On 15 December 2008, 6 March 2009 and 19 March 2009 the Appellant presented three claims in the Employment Tribunal advancing a variety of complaints which we can summarise as follows: (1) age discrimination - the Appellant claimed that both his original lay-off and his subsequent dismissal were by reason of his age and constituted unlawful discrimination; (2) unfair dismissal - in his details of complaint the Appellant set out the history as we have summarised it and made various points to which we will return when we consider this part of the claim; and (3) a claim for breach of contract, of which for reasons which will appear we need not give any details.

1. Those claims were heard before an Employment Tribunal sitting in Manchester, chaired by Employment Judge Feeney on 9 April 2010. The Appellant was represented by Mr Wignall of North West Employment Law Solicitors, and the Respondents by Mr Melia of Northgate Arinso Employer Services. By a Judgment and Reasons sent to the parties on 29 June 2010, the Appellant's claims of age discrimination and unfair dismissal were dismissed on the merits and the claim for breach of contract was dismissed on the basis that it was out of time.

1. The Appellant originally appealed against all aspects of this decision except for the decision that his initial lay-off was not on the grounds of age. However, in relation to the breach of contract claim he also sought a review, which in the event proved successful; and that aspect of the appeal is accordingly no longer live.

1. On this appeal the Appellant has again been represented by Mr Wignall, whose submissions have been clear and succinct. The Respondents notified this Tribunal that they were not proposing to attend and would rely on their written submissions.

1. As will appear, the remaining claim of age discrimination depends essentially on one of the issues which we have to consider in relation to the unfair dismissal claim, and we will accordingly take the latter first.

1. Sections 98ZA to 98ZF of the Employment Rights Act 1996 set out the regime governing the fairness of dismissals for retirement on or after age 65. The dismissal will be fair if (a) the reason for dismissal is retirement as defined by either section 98ZB, section 98ZD or section 98ZE and (b) the employer has complied with the notification requirements under Schedule 6 to the Employment Equality (Age) Regulations 2006 (as to this see section 98ZF). We take those two questions in turn.

1. So far as whether the reason for the dismissal was retirement under one of the three sections that we have identified, the relevant section for our purposes is section 98ZD. This reads as follows:

"98ZD Normal retirement age 65 or higher: dismissal at or after retirement age

(1) This section applies to the dismissal of an employee if -

(a) the employee has a normal retirement age,

(b) the normal retirement age is 65 or higher, and

(c) the operative date of termination falls on or after the date when the employee reaches the normal retirement age.

(2) In a case where -

(a) the employer has notified the employee in accordance with paragraph 2 of Schedule 6 to the Regulations, and

(b) the contract of employment terminates on the intended date of retirement,

retirement of the employee shall be taken to be the only reason for the dismissal by the employer and any other reason shall be disregarded.

(3) In a case where -

(a) the employer has notified the employee in accordance with paragraph 2 of Schedule 6 of the 2006 Regulations, but

(b) the contract of employment terminates before the intended date of retirement,

retirement of the employee shall not be taken to be the reason (or a reason) for dismissal.

(4) In a case where -

(a) the employer has not notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, and

(b) there is an intended date of retirement in relation to the dismissal, but

(c) the contract of employment terminates before the intended date of retirement,

retirement of the employee shall not be taken to be the reason (or a reason) for dismissal.

(5) In all other cases where the employer has not notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, particular regard shall be had to the matters in section 98ZF when determining the reason (or principal reason) for dismissal."

We consider the application of that section sub-section by sub-section.

1. As regards sub-section (1), it was common ground that the Appellant had a normal retirement age of 65 or higher, so that heads (a) and (b) are satisfied. As regards (c), it was, and is, the Appellant's case that this was not satisfied because the operative date of termination was 7 November 2008 - that is, five days before his 65th birthday. The phrase "operative date of termination" is defined in section 98ZH as being either, where the employer terminates the employee's contract of employment by notice, the date on which the notice expires or, where he does so without notice, the date on which the termination takes effect.

1. The submission that the operative date of termination was 7 November 2008 is based on the facts (a) that the Tribunal found that the Appellant was "taken off the payroll" on 7 November and (b) that his P45 stated 7 November as his "leaving date". The latter is probably simply a reflection of the former. We cannot accept that those facts are by themselves material to the question of when the Appellant's employment ended. What matters is what was communicated between the parties. So far as that is concerned, the Appellant was told unequivocally by the letter of 30 October that he was being dismissed with effect from 14 November. He was never told anything different after that date. In particular, it is not suggested that he was told that he was being taken off the payroll on 7 November or was given his P45, which mentioned that date, prior to 14 November. The matters on which he relies are thus matters which only came out subsequently.

1. Mr Wignall sought in this connection to rely on the decision of the Court of Appeal in Kirklees Metropolitan Council v Radecki [2009] ICR 1244, in which, in very particular circumstances, it was held that the dismissal of the employee was communicated to him by his being taken off the payroll. We should note the relevant dates. The last date for which the employee was paid was 31 October 2006. The date on which he was taken off the payroll was 7 November, being his monthly pay day. There was an express finding - according, obviously, with common sense - that he would have appreciated within a very few days of 7 November that he had been taken off the payroll, since he had not been paid. It is important to appreciate in that case that the employee had previously been told in terms that he would be taken off the payroll (see paragraph 54 in the judgment of Rix LJ), and there was, as we have already said, an express finding that he knew within a few days thereafter that that had occurred (see paragraph 52). Those features are not present in this case. Acutely, Mr Wignall drew attention to the fact that Rix LJ in the concluding paragraph of his judgment refers to the employment having come to an end on 31 October 2006, rather than on either 7 November or the date a few days subsequently at which the employee would have known that he had not been paid. Strictly, and with all respect, I think that Rix LJ may have been in error there, since on ordinary principles the termination had to be communicated. He himself says, at paragraph 49 of the judgment:

"[…] the effective date of termination will be the date of summary dismissal, as long as that is known to the employee [emphasis supplied]."

It made no difference on the facts of the case whether the date in question was 31 October or some date in mid November. We note that Toulson LJ in his concurring judgment did not commit himself to the date of 31 October: indeed he refers in terms to the employee's knowledge occurring "when the payment ceased to come into his bank account". We do not, therefore, find anything in Radecki which contradicts our conclusion in relation to the operative date of termination in the Appellant's case.

1. We turn to sub-sections (2) and (3). These refer to paragraph 2 of Schedule 6 to the Regulations, which reads as follows:

"2 Duty of employer to inform employee

(1) An 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.

(2) The duty to notify applies regardless of -

(a) whether there is any term in the employee's contract of employment indicating when his retirement is expect to take place,

(b) any other notification of, or information about, the employee's date of retirement given to him by the employer at any time, and

(c) any other information about the employee's right to make a request given to him by the employer at the time."

There is an issue as to whether the letter of 22 May 2008 specified "the date on which [the Respondent] intends the employee to retire" - we discuss this below - but even if it did the letter was sent less than six months before any of the candidate dates, and accordingly it was common ground before the Tribunal that the Respondents could not rely on sub-section (2).

1. We need not consider sub-section (4), which has not been relied on by the Appellant.

1. As regards sub-section (5), this cross refers to section 98ZF, which reads as follows:

"Reason for dismissal: particular matters

(1) These are the matters to which particular regard is to be had in accordance with section 98ZB(5), 98ZD(5) or 98ZE(7) -

(a) whether or not the employer has notified the employee in accordance with paragraph 4 of Schedule 6 to the 2006 Regulations;

(b) if the employer has notified the employee in accordance with that paragraph, how long before the notified retirement date the notification was given;

(c) whether or not the employer has followed, or sought to follow, the procedures in paragraph 7 of Schedule 6 to the 2006 Regulations.

(2) In subsection (1)(b) "notified retirement date" means the date notified to the employee in accordance with paragraph 4 of Schedule 6 to the 2006 Regulations as the date on which the employer intends to retire the employee."

Paragraph 4 of Schedule 6 to the Regulations, referred to at sub-section (1) (a), reads as follows:

"4 Continuing duty to inform employee

Where the employer has failed to comply with paragraph 2, he has a continuing duty to notify the employee in writing as described in paragraph 2(1) until the fourteenth day before the operative date of termination."

As for paragraph 7, which is referred to at sub-section (1) (c), this concerns the requirement for the employer to meet the employee to consider any request which he has made for an extension of his retirement date. No point is taken on that in this case and we accordingly need not set it out.

1. The thinking behind section 98ZD (5) is evidently that in a case where the employer has not fully complied with the statutory notification obligations, so that retirement is not automatically to be taken to be the reason for the dismissal in accordance with sub-section (2), the issue becomes one of fact for the Tribunal to determine, but one in which the factors specified in section 98ZF must be central to its reasoning.

1. As regards those factors, it was the Respondents' case that they had complied with paragraph 4 of Schedule 6 by writing the letter of 22 May 2008. Although that letter was too late to satisfy paragraph 2, it constituted the necessary notification, and it was still some five-and-a-half months before the relevant date. (It is common ground that the letter of 30 October 2008 was too late for the purpose of the present issue because it would not have been received before the fourteenth day before the operative date of termination, as required by paragraph 4.)

1. The Appellant disputed the Respondents' case on this point on the grounds that the letter of 22 May 2008 contains no precise date of intended retirement. Mr Wignall's submission, both before the Tribunal and before us, was that the letter said no more than that the Appellant would retire "after" his 65th birthday, without specifying any particular date on which that would occur. The Tribunal rejected that submission on the basis that the letter referred in its second paragraph to the employee handbook and that that handbook, if consulted, specified in terms that employees would retire at the end of the week in which their 65th birthday fell. Thus, if the notification were read with the handbook, it would have been clear that the Appellant was to retire on 14 November 2008 - that being, of course, the date which was, in due course (though too late), specified in the letter of 30 October.

1. Mr Wignall submits that that reasoning on the part of the Tribunal is wrong in law. He submits that the notification required by paragraph 2 of Schedule 6, and therefore also by paragraph 4, must be self contained and not require reference to any other document. He relies in particular on sub-paragraph (2).

1. We are inclined to think that Mr Wignall is right on this point. We think that he may be reading too much into sub-paragraph (2), which seems to us not to be concerned so much with questions of cross reference in the notification but rather with preventing an employee raising an argument along the lines that, although he may not have given a notification at all, he had supplied the necessary information on another occasion or in another form. Nevertheless, we are inclined to agree that the policy behind paragraph 2 generally seems to be that the employee should be given the essential information in the notification itself and should not have to follow a paper-trail in order to find it. The position is a fortiori in the present case because the cross reference in the letter to the handbook was entirely general: it did not alert the Appellant to the fact that if he wanted to know the precise date of his retirement the relevant rules were to be found on such-and-such page of the handbook.

1. However, that point only matters if it is indeed the case that the letter did not state a date of retirement. In our view it did. In our view the natural reading of the letter of 22 May 2008, read as a whole, is that the Appellant would be retired on his 65th birthday - that is, on 12 November 2008. That is the date mentioned in the very first line, though admittedly it is there referred to simply as the date of the Appellant's 65th birthday. The third paragraph refers to him having to request to continue working "after you have reached the age of 65 years" - that is, after 12 November. The final paragraph refers to "the retirement date above". In our view, anyone reading all those passages together would naturally understand it to mean that the Appellant was going to have to retire on 12 November; and indeed we note that when he wrote his letter of 15 October, to which we have referred already, he referred to the fact that "I am to retire on 12 November 2008". As regards the phrase "will cease after the above birthday" in the second paragraph, "after" does not always literally mean "on some date later than". It is perfectly good colloquial English to use "after", in some circumstances, to mean "on". Some comparison can be made, though the point is not quite the same, with the decisions of Kerr J in the Karen Oltmann v Scardale Shipping Co [1976] 2 Lloyd's Rep 708 (see at page 710) and of Simon J in Kharegat v Deloitte & Touche LLP [2004] EWHC 1767 QB (see at paragraph 27).

1. When we put this point to Mr Wignall he had two responses, besides disputing the point itself on the merits.

1. First, he pointed out that that was not the Respondents' own case. Though there had admittedly been some equivocation (for example, the first of its ET3s gave the termination date as indeed being 12 November 2008), their primary position at the hearing had been that the termination date was 14 November, in accordance with the letter of 30 October. It was on that basis that they had said that the letter had to be read with the handbook in order to reach the result that the retirement date was the end of the week, rather than 12 November itself. However, it seems to us that the Appellant cannot have it both ways. If, as he submits, the handbook and the subsequent correspondence cannot be referred to to supplement the natural meaning of the letter when read in isolation, nor can they be relied on to undermine its natural meaning when so read. If, as we believe, the letter read on its own sufficiently clearly specifies 12 November as the retirement date, the fact that the writer might at the time have actually had in mind 14 November (because he remembered what appeared in the handbook), or that he specified 14 November some months later, is immaterial. Nor, as Mr Wignall accepted, does it matter that in fact his retirement date as notified was in the event postponed for two days. The fact remains that a specific date was notified.

1. Secondly, which is perhaps another way of putting the same point, Mr Wignall submitted that the way that we see it is not how the Tribunal decided the point. We accept that, but we are not prisoners of the arguments supporting the Tribunal's detailed reasoning. It is open to us to uphold the Tribunal's decision on a different basis as long as that basis is one with which the Appellant's representative has had a chance to deal and is, as it is, purely a point of law. This does not seem to us an entirely new point: as noted above, the Respondents had in fact identified 12 November as the date of termination in one of the ET3s.

1. We have considered whether, even if we were wrong in the view that we have taken about compliance with paragraph 4, a failure to comply with that paragraph necessarily showed that retirement was not the reason for the dismissal. Section 98ZD (5) after all says only that "particular regard" is to be had to the matters specified in section 98ZF, not that they are conclusive. It is in fact pretty clear here, whatever the precise wording of the letter of 22 May 2008, that retirement was the reason for the Appellant's dismissal. That point seems to us to be good as far as it goes, but the problem about it is that it would get the Appellant over one hurdle, only to fall at the next: a failure to comply with paragraph 4 would be fatal at the reasonableness stage (see section 98ZG (2) (a), to which we refer below).

1. That deals with heads (a) and (b) of the particular matters specified under section 98ZF (1). No point is taken on head (c) because the Respondents did in fact have meetings with the Appellant to discuss his request for an extension.

1. Thus, we find, like the Tribunal, that retirement was the reason for the Appellant's dismissal. The remaining question is the reasonableness of dismissal for that reason. This, as we have said, is the subject of section 98ZG, which reads as follows:

"98ZG Retirement dismissals: fairness

(1) This section applies if the reason (or principal reason) for a dismissal is retirement of the employee.

(2) The employee shall be regarded as unfairly dismissed if, and only if, there has been a failure on the part of the employer to comply with an obligation imposed on him by any of the following provisions of Schedule 6 to the 2006 Regulations -

(a) paragraph 4 (notification of retirement, if not already given under paragraph 2).

(b) paragraphs 6 and 7 (duty to consider employee's request not to be retired),

(c) paragraph 8 (duty to consider appeal against decision to refuse request not to be retired)."

1. The only respect in which it was argued that the Respondents did not comply with section 98ZG was the alleged failure to give a precise retirement date in the notice of 22 May 2008. For the reasons already given we believe that there was no such failure.

1. It follows that the Appellant's dismissal was fair. It also follows that it did not constitute unlawful age discrimination. Regulation 30 of the 2006 Regulations reads, so far as material, as follows:

"[…]

(2) Nothing in Part 2 or 3 shall render unlawful the dismissal of a person to whom this regulation applies at or over the age of 65 where the reason for the dismissal is retirement.

(3) For the purposes of this regulation, whether or not the reason for a dismissal is retirement shall be determined in accordance with sections 98ZA to 98ZF of the 1996 Act."

1. We accordingly dismiss the appeal.