Appeal No.	 EAT/77/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 November 1999

Before
HIS HONOUR JUDGE H WILSON
DR D GRIEVES CBE
MR N D WILLIS

PAULINE ATKIN	APPELLANT

DR CHAHAL T/AS THE DALE SURGERY	RESPONDENT

Transcript of Proceedings

FULL HEARING

Revised

	APPEARANCES

For the Appellant	Mr K McNerney
Instructed By:
The Royal College of Nursing
Raven House
81 Clarendon Road
Leeds 
LS2 9PJ	
For the Respondent	Mr J Quigley
Solicitor
Instructed By:
British Medical Association
Legal Department
BMA House
Tavistock Square
London
WC1H 9JP	

	JUDGE WILSON:	This has been the hearing of the full argument in the Appeal brought by Mrs Atkin against the decision of the Employment Tribunal sitting in Nottingham on the 23rd October 1998, that she was not entitled to make a complaint of unfair dismissal because she had passed the normal retiring age when she was dismissed.  

2.	The Appellant has been represented by Mr McNerney and the Respondent by Mr Quigley.  The facts are set out in the lengthy judgement of the Employment Tribunal and are as follows.  The Appellant was employed as a practice nurse by the Respondent Medical Practice and was so employed for a large number of years.  The facts found by the Tribunal are set out in paragraph 10 of their decision and include reference to the take-over of the practice by the Respondent in 1987.  

3.	In 1992, the Applicant was given a Contract of Employment for the first time.  It did not contain any clause concerning a contractual retiring age and the Appellant certainly expected to work until she was 65.  She signed that Contract on the 29th June 1992.  There was another nurse who had been employed from 1991 until 1995 and she had retired by agreement at the age of 60.  

4.	In 1995, the Appellant’s hours were reduced and a second new practice nurse was taken on.  She and the Appellant worked in tandem.  

5.	In 1996, a new contract of Employment was provided and this coincided with the first contract given to the other lady.  The Appellant’s revised contract provided amongst other things:-

“If your employment is not terminated before you attain the retiring age of 60, you employment will terminate automatically when you attain that age unless an extension beyond that date is offered to you and accepted by you.  Extended retirement will be reviewed annually”.  

When the Appellant received that contract, she was already sixty-one, but she nevertheless signed it, after taking advice.   

6.	Subsequently, in 1997, she was warned that it was unlikely that her contract would be extended when it was reviewed in 1998.  It was, in fact, terminated on 8th May 1998.  She sought to claim that that determination constituted an unfair dismissal and she sought also to establish that she was given inadequate written reasons for the dismissal.  Her third complaint to the Tribunal concerned a failure to provide initial employment particulars, but we are informed by Mr McNerney today that there is no issue about that last matter.   Similarly, so far as the cross-appeal in the case by the Respondent is concerned, Mr Quigley has indicated that that is now withdrawn and not proceeded with.  

7.	The Tribunal in its decision set out the statutory and case law provisions which were applicable to the case before it.  They properly set out in paragraph 5 the provisions of section 109 of the Employment Rights Act 1996 go on in paragraph 6 to review what is said about the question of a normal retiring age in Waite v. Government Communications HQ 1983 ICR 53, a House of Lords Judgement which was considered with others by the Court of Appeal in Barclays Bank v. O’Brien and others[1994], ICR 865. In particular, the question that has to be asked is set out in that case,  namely that the question to be asked by the Tribunal which is:

“What at the effective date of termination of the Applicant’s employment and on the basis of the facts then known, was the age which employees of all ages in the group could reasonably regard as their normal retiring age”.

8.	The Tribunal found that because the Appellant was over the normal retiring age they were bereft of jurisdiction.  Mr McNerney complains that that was a wrong decision;  that the relevant group in this case are the two practice nurses and that the normal retiring age before the 1996 contract was 65.  He claims that that age was unilaterally altered to 60 without consultation or agreement and that it was that unilateral action which was being used to exclude the Tribunals jurisdiction.  He posed the question whether it was reasonable for such exclusion to be based on a void provision and suggested that the term was void by virtue of section 203 of the Employment Rights Act.   

9.	Mr Quigley on behalf of the Respondent submitted that section 203 provides, insofar as it is relevant, that a would be Applicant claiming unfair dismissal cannot do so.  Mr Quigley submitted that the clause in the new contract so far as the Applicant was concerned was caught by the provisions of section 203 of the Employment Rights Act 1996 and did have the effect of precluding her from bringing any proceedings for unfair dismissal under the Act.  He said that the Tribunal had clearly accepted that there had been a genuine change of policy within the practice concerning the age of retirement.   He pointed out that there was no contractual provision before 1996 and therefore there was no need to ask what the retirement age was believed to be.  

10.	So far as the question of consultation was concerned, if it was a genuine policy change and if was adequately communicated to the employees, there was no need for consultation about it and he pointed out that that was the conclusion in the case of Hughes to which reference was made.  

11.	In summary, what Mr Quigley submitted was that at the time when this Appellant sought to say that she had been unfairly dismissed, she knew that the normal retirement age was 60 and that that had been established as a policy decision about a year before.  

12.	In our judgement, an examination of the decision by the Employment Tribunal makes it quite plain that they correctly identified the law they had to apply and applied it properly to the facts which they found proved. 

In particular, in paragraphs 21, 22 and 23 they say as follows:

21. “we refer ourselves to the question which the Court of Appeal states we should pose.  That is;  what at the effective date of termination of the Applicant’s employment and the basis of the facts then known, was the age which employees of all ages in the group could reasonably regard as their normal retiring age.  

22.We draw no distinction between the Appellant and Mrs Blanchard.  Both are practice nurses, although the Applicant had specialist duties and because of her seniority, demanded a higher pay scale.   

23.		Mrs Blanchard was bound by her contract as far as retirement age was concerned.  Although this was not so as far as the Applicant was concerned, she had been informed by the provisions of the proffered contract, that a policy had been introduced specifying the retirement age of 60 with the possibility of extension year by year.  At the effective date of termination of the Applicant’s employment therefore, she knew these facts and we conclude that both she and her colleague should at that time have regarded the normal retirement age for their group as one of 60”.  

13.	As she was 63 at the effective date of termination of her employment, the Appellant is unable to complain having been unfairly dismissed.  We find no reason to depart from that conclusion and can find no error in it having listened with care to the full arguments on both sides and accordingly this Appeal is dismissed