Veitch Penny LLP - Exeter | Crediton, Devon

Case

Wall v British Compressed Air Society
Court of Appeal - (10 December 2003)

Issues

(1) Unfair dismissal
(2) Retirement age
(3) Comparators

Facts

Section 109 of the Employment Rights Act 1996 states that the right not to be unfairly dismissed does not apply if the employee had reached the “normal retiring age” (NRA) for an employee in their position, or where there is no NRA, if the employee had reached the age of 65.

In this case the employee was the Director General of the Society. He was dismissed when he reached the age of 67 years.

He commenced proceedings in the Employment Tribunal based on unfair dismissal. As he was more than 65 years old at the date of his dismissal, he needed to show that there was an NRA applicable to him and that he had not reached this age at the date of his dismissal.

A preliminary hearing was held to determine whether he was entitled to claim unfair dismissal due to his age. The Tribunal considered whether an employee with such a unique position within the Society had an NRA as stated in section 109. The employee contended that it had been agreed with his employer that he could retire at 70. The Employment Tribunal felt that it was bound by a previous Employment Appeal Tribunal decision and therefore had to find for the employer. Accordingly, it held that because of the employee’s unique position, there could be no NRA, because there were no other employees in his position to whom he could be compared. Consequently, as he was over 65 he could not claim unfair dismissal.

Upon hearing the employee’s appeal, the Employment Appeal Tribunal concluded that the employee’s position could not be compared with that of any other employee. Accordingly the only comparison for his NRA was the contractual retiring age of 70. The Society appealed.

Decision

The Appeal was dismissed. It was held that the NRA for a unique employee such as in this case would have to be his contractual retiring age. No comparison with any other employee in the same position was required. If such a comparison was needed it would logically have meant that no employee in a unique position would be able to rely on their contractual retiring age to establish their NRA. This would clearly be unfair because it would discriminate against them purely on the basis that the employee was in a class of one.

Comments

This case demonstrates that where an employee in a unique position has a Contract which provides for a specific retiring age, that age should be treated as their NRA for the purposes of the statutory upper age limit. This decision disagrees with the approach taken in the case of Age Concern Scotland –v- Hines. This case found that an employee in a unique position could not have an NRA because there were no comparators in the same position as him and therefore the statutory alternative of 65 applies.