Appeal No.	 EAT/695/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 October 1997

Before
THE HONOURABLE MR JUSTICE MAURICE KAY
MRS R CHAPMAN
MR A D TUFFIN CBE

MR L COLLINGS	APPELLANT

THE EMPLOYMENT SERVICE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON

MR R COLLINS
(Representative)

	MR JUSTICE MAURICE KAY:   This is a preliminary hearing of the appeal of Mr Collings against the decision of an Industrial Tribunal sitting at Exeter on 15th April 1997. 

	Mr Collings spent part of his working life in Her Majesty’s Dock Yard in Plymouth, but was retired upon privatisation in 1980’s when Mr Collings was in his fifties. He managed to obtain employment at the Employment Service in December 1987. He regarded it as secure employment and believed that he would be able to keep it until the age of 65.

	In about May 1995, he received a letter referring to his retirement in November 1995 when he would have been 60. That caused him some alarm, but he was able to negotiate an extension of what turned out to be one final year. He was retired compulsorily on 14th November 1996 in circumstances that constituted a dismissal.

	He claimed that it was an unfair dismissal. When the matter before the Industrial Tribunal the tribunal concentrated on a preliminary issue, namely as to what the normal retiring age was in the job which Mr Collings had been performing. It is well known that under s.109 of the Employment Rights Act 1996 the unfair dismissal provisions are not available to an employee if the effective date of termination of his employment is at/or above the normal retiring age.

	The Industrial Tribunal heard a considerable amount of evidence on this subject. From Mr Collings’ point of view, it was centred upon a statement of his expectations. The contractual document which played the most substantial part in these considerations, is the personnel handbook of the Employment Service and specifically Chapter 33. There is contained within that chapter the following provision headed “Retirement Age” set out as follows:

	“2   The normal minimum retirement age at which all permanent civil servants become entitled to the immediate payment, in full, of their accrued Civil Service pension is 60.”

	The following clause in Chapter 33 refers specifically to “normal retirement rules” and the Chapter then goes on to provide:

 “(4) 	staff in the Administrative Officer and non-mobile grades may be kept on beyond the age  of 60 if they are fully fit and efficient in their grades and they are needed;
    (5) 	staff will not normally be kept on beyond the age of 65.”

That provision was considered by the Industrial Tribunal in its decision. 

	The Industrial Tribunal was referred to the decision of the House of Lords in the case of Waite v Government Communications [1983] IRLR and without mentioning that authority by name, it is clear to us that in paragraph 15 of their decision the Industrial Tribunal faithfully sought to apply it. The Industrial Tribunal said this:

“15 ... The test is one of reasonable expectation. It is not dependent on what the applicant or any other individual group actually thought although clearly that must have some relevance. We have no doubt that the applicant thought that he would probably be able to work until 65. It is not merely the applicant’s expectation which is important; it is the general expectation. There is no evidence of any general expectation to that effect.”

	It seems to us that that application of the Waite principle is borne out by the evidence in Mr Collings’ case, because in paragraph 6 of the decision it is recorded that witnesses called by the employer said that there are civil servants who remain after the age of 60, but only about 1% of those in the south west region work over the age of 60. In such circumstances it would be very difficult to establish a reasonable expectation so as to produce a normal retiring age above 60. 

	When one looks at the wording of the decision, it is apparent that Mr Collings felt aggrieved that if his employers were intending to finish him at 60, they conspicuously failed to consult with him and prepare him for that contingency. It seems to us that the Industrial Tribunal had some sympathy with that view, because they state in paragraph 13:

“13  ... The applicant maintains that these requirements [i.e. consultation requirements] were not observed and he may well be right.”

	However, that is not the question that fell to be decided as a preliminary issue. The preliminary issue was simply a legal issue as to what the normal retirement age was. 

	We have scrutinised the decision of the Industrial Tribunal with care. It seems to us that it is a decision that was made on a consideration of all the evidence which had been produced by both sides and upon an application of the approach indicated by the House of Lords in Waite. This appeal tribunal can only proceed with appeals from Industrial Tribunals when there is an identifiable point of law which has some arguable prospect of success. We have a great of sympathy with Mr Collings in his present predicament. However, it seems to us, and we are unanimous about it, that the law was correctly identified and properly applied by the Industrial Tribunal who, reading between the lines, probably also felt some sympathy for Mr Collings. Unfortunately, it seems to us that there is no arguable point of law which stands any prospect of success at a final hearing, and in those circumstances it is our duty to dismiss this appeal now.