Appeal No. EAT/564/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 1 July 1992

	Before

	HIS HONOUR JUDGE B HARGROVE OBE QC

	MR A C BLYGHTON

	MRS M E SUNDERLAND JP

C S E AVIATION LTD	APPELLANTS

MR A I HICKLING	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MS SUE ASHTIANY
	(SOLICITOR)
Messrs Cole and Cole
Sterling House
19/23 High Street
Kidlington
Oxford OX5 2DH

For the Respondent	THE RESPONDENT 	APPEARING IN PERSON

	JUDGE HARGROVE QC:   On the 10th April 1991, the Industrial Tribunal held that on the preliminary issue whether there was jurisdiction to hear the respondent's claim of unfair dismissal, that there was jurisdiction because for those in his position there was no retirement age and therefore, under s.64(1)(b) paragraph 2 the age of 65 applied.  

	Mr Hickling's employment was as a commercial flying instructor which started on 31st October 1988 and terminated on 8th February 1991, when he was given one month's notice.  At the time of joining the appellant he was 61 years of age and it is common ground that the normal retiring age of commercial flying instructors is 60.  The Industrial Tribunal found that there was a class of persons to which the respondent belonged who actually joined the appellants' employment when they were already over that age and the Tribunal held that in cases of employees, such as Mr Hickling, who joined the respondent when they were already over the age of 60 there is no normal retirement age.  Their reasonable expectation as far as of their retirement age - the relevant time - is that the date of dismissal is the only provision set out in document 7.

	The appeal on this matter is upon two grounds.  First:
"that employees holding the same position as the Applicant ("Mr Hickling") at the date of his dismissal were those commercial flying instructors ("pilots") who had joined the Respondents employment after the age of 60 rather than all pilots employed by the Respondents at the date of Mr Hickling's dismissal.  In particular, the Tribunal erred in distinguishing those pilots who had joined the Respondents employment after the age of 60 from the remainder of the pilots by sole reference to the apparent absence of a contractual retirement age for the former, and without having due regard to the common nature of the terms and conditions and duties of the employment."
Secondly:
"Taking into account the previous history of Mr Hickling's employment in determining the class of employees who held the same position as Mr Hickling."
	The relevant statutory provisions are contained in s.64 of the Employment Protection (Consolidation) Act 1978 which says this, omitting immaterial matters:
"(1) Subject to subsection (3), section 54 does not apply to the dismissal of an employee from any employment if the employee-

[(b)attained the following age on or before the effective date of termination, that is to say-

(i)if in the undertaking in which he was employed there was a normal retiring age for an employee holding the position which he held and the age was the same whether the employee holding that position was a man or a woman, that normal retiring age;
and
(ii)in any other case, the age of sixty-five.]
	S.153 defines "position" in the following terms:
" "position", in relation to an employee, means the following matters taken as whole, that is to say, his status as an employee, the nature of his work and terms and conditions of employment;"
	Initially and very understandably, the decision of this Tribunal in the case of Barber was placed before us indicating that that first point in relation to reliance upon the absence of a retirement age as being a distinguishing feature as to the "group"  - and I put that in inverted commas being well aware that it is not part of the statutory provision - but that was by Barber a wrong approach.  Unfortunately, half way through today it was possible to produce for the parties the decision of the Court of Appeal dated 29th April 1992, a decision which has not been referred to in any report which is available to the public.  It is therefore, no criticism of anyone, save perhaps one member of this tribunal, that that matter was not cited before us.  It is worthwhile looking at that decision in some detail to see what is now being said as to the correct test.

	We start with the decision of Dillon LJ at page 9B of the transcript in the following terms:
"The particular point we have here is this.  There were senior supervisors who had joined Thames's service on or after 1st January 1978, and for them, if they can be regarded as a group on their own or looked at individually, their normal expectation of retirement was, at the time of the termination of Mr Barber's service, as it had been all along, 60.  Mr Barber's was never 60.  Subject to Mr Edelman's point that the letter should be disregarded because it did not change the contractual retirement age of anyone, for Mr Barber and all other senior supervisors who were taken into Thames's employment before 1st January 1978 normal retirement age was, under the letter of 26th October 1987, from 1st November 1988 to 31st October 1989, the age of 64.  So the question is: is it permissible to treat all senior supervisors whose compulsory retirement age was 64 as a group separate from those senior supervisors whose retirement age was 60?

	The Employment Appeal Tribunal held that that was not permissible.  All senior supervisors formed one group because their position, as defined in section 153(1), was the same save in respect of the compulsory retirement age if the terms of the letter are part of their terms and conditions of employment.  But in the view of the Employment Appeal Tribunal the compulsory retirement age could not be a relevant consideration in considering the terms and conditions because, in their view, a term of employment regarding retirement and not linked to or reflecting some other distinguishing feature of the employee's position could not of itself have been intended by Parliament to be the basis for distinguishing one group of employees from another because that would negate the purpose behind the legislation.  I find great difficulty with that conception.  It is put a bit later by Mr Justice Knox:

"In our view there has to be excluded from consideration in identifying the relevant group any term which only deals with retirement and is not linked to or a reflection of some other facet of the terms and conditions of the employer's employment."

	Lord Irvine referred us on the meaning of the words "terms and conditions" to the well-known case of British Broadcasting Corporation v. Hearn [1977] 1 I.C.R. 685.  There the court was concerned with the meaning of "terms and conditions of employment" in a context of what was an industrial dispute.  Lord Denning said at 692B:

"It was suggested that those words related only to the contractual terms and conditions...  But that, I think, would be too limited.  Terms and conditions of employment may include not only the contractual terms and conditions but those terms which are understood and applied by the parties in practice, or habitually, or by common consent, without ever being incorporated into the contract."

Lord Justice Roskill at 696H to 697A said that it was open to the court to give the phrase, and he thought the court should give the phrase, "a very wide meaning, so that it embraces everything which can fairly be said to form part... of the totality of the terms and conditions upon which employees of particular employers are from time to time employed, such as what Lord Denning M.R. during the argument called fringe benefits".

I see no reason to suppose that Parliament intended that the common phrase "terms and conditions of employment" should bear some special meaning in the 1978 Act which it did not bear when used in other employment contexts.  I would not leap to such a conclusion and I note that in the Scottish case, to which we were referred, of The Highlands and Islands Development Board v. MacGillivray [1986] I.R.L.R 210, The Lord Justice Clerk (Lord Wheatley) said in paragraph 17:

"In the case of persons whose contracts of employment lay down a retiring age, ... the retiring age may be regarded as part of that person's terms and conditions employment..."

and then he went on to say, and it is a point to which I will have to come:

"but the fact that within a group all do not have the same contractual retiring age does not mean that all do not remain members of the same group."
	I turn now to page 13F in which the following passage occurs:
"Therefore, we have the situation that it is inconsistent with Hughes to rely on the circumstances by which it came about that those who entered Thames's employment before 1st January 1978 had different terms and conditions of employment to those who entered the employment of Thames after that date, but it is relevant to have in mind the terms and conditions of employment, including terms and conditions as to retirement, which certain employees, including Mr Barber, had as the basis for their expectations as a result of the letter.  I would therefore reject Mr Edelman's submission that we should disregard the letter.

	Applying it then, we have the position that after the letter there were certain employees, including Mr Barber, whose normal retirement age was, at the time of Mr Barber's termination of employment, 64; others who had entered service after 1st January 1978, whose normal retirement age was merely 60.  Is it therefore necessary to look at all of them as one group?  Or is it permissible to take into account the differences?  It is not in doubt that if Thames had wanted to do so it could by the 1978 letter simply have brought down the normal retirement age for all employees, from whatever it had been before, to 60, be they male or female.  That would have been effective and anyone who had thereafter been retired because he had attained the age of 60 would have been unable to make an application to an Industrial Tribunal under section 54 of the Act.  What Thames has sought to do is to cushion the blow by bringing the retirement age down in stages, as it was indeed done in the Hughes case.  It seems to me somewhat surprising if a radically different result would follow if retirement is then enforced in accordance with the stages than if retirement was enforced in accordance with a once and for all reduction of the age from 65 to 60.

	Lord Fraser pointed out that it was not necessary that, in relation for instance to retirement date, the terms and conditions of employment should be identical for every member of the group.  He envisaged the situation where a small number of the group had different terms and conditions of employment in relation to retirement.  It would still be the case that the retirement age prescribed for the generality of the group would be the retirement age for all the group.  That was applied by the Court of Session in the Highlands and Islands Development Board v. MacGillivray case, to which I have already referred, where a small minority of, I think, some 16 of a group of 63 had different terms and conditions.  That is not this case and I do not read the Highlands and Islands case as seeking to go further than was required by the circumstances actually before the court." 

	One can therefore take it from the Judgment of Lord Dillon that a Tribunal is entitled to take into account the fact that there are different retirement ages or, that one group has a retirement age and the other has not, as a relevant consideration in working out whether the group exists for the purpose of the act.  This is confirmed by Lord Justice Neill's comment at page 16:

"I agree, and only add a few words on the basis that I would allow the appeal even if Mr Edelman is right in his submission that in the definition of the word "position" contained in section 153(1) of the 1978 Act, the words "terms and conditions of employment" are to be confined to the contracted terms.  It seems to me that in this context it is permissible to regard those who are subject to the contractual retirement age of 60 to be in one group, which I will call group A, and those who are not subject to the contractual retirement age of 60 as a second group, group B.  Group A has and always has had a contractual retirement age of 60 and has had a normal retirement age of 60."

It seems to us that that to a very large extent covers the situation which occurred here.

	I turn now to the final comments in the Judgment of Lord Justice Staughton beginning at page 19:
	"It seems to me that Lord Allenbridge in the Highlands and Islands case may well have held that a term which was derived from the previous employment history was to be altogether disregarded, but I do not think that the Lord Justice Clerk or Lord Hunter held that view.  The Lord Justice Clerk was, in my opinion, saying that a difference in terms and conditions as to retirement age does not necessarily and in all cases result in two groups or classes rather than one group or class.  That I can readily accept.  Otherwise it would be open to an employer to avoid the effect of the statute by imposing different terms and conditions as to retirement age and thereby creating new and smaller classes.  That was, I think, the reasoning of the Employment Appeal Tribunal.  But I do consider that a difference in terms and conditions as to retirement age is capable of being a factor which by itself distinguishes one group or class from another.  The Industrial Tribunal found that it was a distinguishing factor in this case.  I would not disturb the Tribunal's decision.  Furthermore, I think that it was right."

	Those comments have sought to be distinguished upon two grounds.  First of all that in the case of Barber there was no retirement age for those who had come into the firm after they were 60.  In fact that is I fear a distinction which does not stand up to a comparison when looked at in the light of the comments of Lord Justice Neill.  The second distinction which in our view has more weight, is that looked at logically the conclusion arrived at by the Tribunal is that those employees who have been employed prior to reaching 60 years of age and then retired and are taken back on a temporary basis, and I use the word temporary in its widest sense, will have no position at all in relation to s.54 whereas someone such as the Respondent in this case who comes to the firm afresh, and joins after his 60th birthday, then has the privileges attached to s.54 on Unfair Dismissal.

	That argument whilst it is initially attractive, has this defect.  It is open to an employer to contract with any person coming into employment upon a short term basis, 6 monthly contracts and that might very well have avoided the situation which has occurred in this case.  Secondly it is suggested that by reason of the finding of the Tribunal which appears at paragraph 12 and it reads:

"The Tribunal was referred to a schedule of flying instructors set out at pages 36 and 37 of the bundle which sets out the names of a number of instructors who started employment with the respondents when they were over the age of 60 [three names are mentioned there as well as Mr Hickling].  There was no evidence as to the conditions of employment which apply to them."

	It is suggested that that therefore means that Mr Hickling was a group of one.  That distinction I fear falls when one considers what is said at paragraph 13 which is:

"Looking at the matter overall however, the Tribunal find that in the case of employees such as Mr Hickling who joined the respondents when they were already over the age of 60, there is no normal retiring age.  Their reasonable expectation as to their retirement age at the relevant time, that is the date of dismissal, would be only that the provisions set out in document 2 in the bundle would be followed."

Then they deal with the matter as I have already set forth.

	In our view the Tribunal has not made a mistake of law and in those circumstances this Appeal must fail.  We feel obliged to add two matters.  First it should not be thought it any way that this Tribunal is commenting in allowing this Appeal upon the validity or otherwise of the substantive matter of the application which Mr Hickling is making before the Industrial Tribunal.  Secondly, it is the wish of my two colleagues that I should comment particularly upon the manner in which the Appellants' representative has presented her case which was of a very high order indeed and was of great assistance to the Tribunal particularly in the light of the fact that she was faced with a very "fast ball" coming in the shape of the decision of a Court of Appeal at the last moment.  Those are views with which I am happy to associate myself.