Appeal No.	EAT/1142/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 December 1997

Before
HIS HONOUR JUDGE B HARGROVE QC
MR P R A JACQUES CBE
MR T C THOMAS CBE

MRS J NEWBOULT	APPELLANT

DR SCOTT & PARTNERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR T WALKER
(Solicitor)
Nelson Wright & Walker
Solicitors
8 Unity Square
Lincoln
LN2 5AH	

	JUDGE HARGROVE QC:     The Industrial Tribunal held that it had no jurisdiction to entertain the appellant’s application that she had been unfairly dismissed because the applicant, on the effective date of termination, reached the normal retiring age for an employee holding the position held by her in the respondents’ undertaking.

	The appellant was a receptionist/filing clerk employed by a partnership of medical practitioners. Her employment came to an end on her 60th birthday when the respondents informed that she would not be granted any extension from the normal retiring age.

	The appellant started work for the respondents in September 1988. She was working part-time. In January 1989 she signed a contract which stated:

“All employees retire on their 60th birthday or by mutual agreement.”

That continued to be the contractual position until 28th February 1996 when an updated contract was drawn up and signed by the appellant. In it there was not mention of retiring age.

	When the respondents informed the appellant that they wished her to retire on 31st January 1997, she said that she was not aware of any practice policy of retirement at 60 but at the Industrial Tribunal she was faced with the 1989 contract under which she had worked for more than five years.

	The next argument urged was that because there were persons still employed over 60 then there was a retirement age which was above 60. The two persons were a bookkeeper who was difficult to replace and worked until she was 68. The other was a practice manager who was retained for the sake of continuity because the practice was going to be reconstructed at new premises, and she retired at 62. The Industrial Tribunal held that the group was non-medical staff employed by the respondents.

	The appellant contends before us that the Industrial Tribunal should have found that there was no retiring age and therefore s.235 applied and the age was 65.

	It is said that having found that the contract of 1989 was entirely superseded by the 1996 contract, then there was no retirement age and therefore 65 would be the normal retirement age.

	Unfortunately, the question is not what were the contractual terms, although such terms are an indication of the normal retiring age, they are not conclusive. The Industrial Tribunal found that the silence of the 1996 contract on that point did not disturb the policy of the normal retiring age, and that was a decision they were entitled to take.

	Moreover, the appellant objects to the use of her letters to the respondents as assisting the Industrial Tribunal in deciding what inference can be drawn as to the normal retiring age. It is not merely that she claims that she did not know the matters which are set forth in the 1989 contract, but there is perhaps more importantly a passage in her letter of 11th November 1996 which reads as follows:

“... Current employees have had the option to continue to work past 60 years of age on the understanding their situation would be reviewed annually.”

	The Industrial Tribunal was entitled to consider that as an indication that there was known to the employees a policy that there was retirement at 60. That was an inference they were entitled to draw and it is a decision on fact. There is no error of law and accordingly there is no arguable point of law here and this the appeal is dismissed.