Mrs Nagesan’s contract specified no retirement age. She was dismissed on attaining 60. The employers disputed the tribunal’s jurisdiction, saying they had written to all employees, including Mrs Nagesan, purporting to introduce a new retiring age of 60 for all. Mrs Nagesan had refused to accept the new terms and had maintained that no specific retirement age applied to her. The employers claimed that a new contract of employment was in force with Mrs Nagesan which did incorporate this new retirement age. The industrial tribunal rejected this contention, finding that ‘there was no retirement age of 60 in Mrs Nagesan’s case’, and the EAT dismissed the employers’ appeal. ‘All that the evidence amounts to, in my judgment, is that the Patels were attempting to impose on her a contract with a term that she retire at 60, an imposition which she resisted. If one tests it with Lord Fraser’s words in mind, by asking what the employee’s reasonable expectation at the time was, it clearly was not that she would have to retire at 60. [Counsel for Mrs Nagesan] puts it in this way: he says you cannot talk of a group expectation when her position is unique. A concept of a normal retiring age simply does not apply. In this context, I would read the words of the appeal tribunal in the final paragraph of their judgment: ‘The contention on behalf of the employer was that, because all the other employees had been persuaded to accept 60 as their retiring age for the future, that became the ‘normal’ age for retirement and the employee’s case therefore failed. We accept the contention of the employee that, as the ‘person in charge’ with responsibilities which statute imposes upon an individual holding that office, she was in a unique position. We consider that there was ample evidence upon which the tribunal could find that there was no retirement age specified and that accordingly the statutory retirement age of 65 now applies, there being no other ‘normal’ retirement age. It is noteworthy that at least one other employee had been employed when already over the age of 60.”
McCowan LJ
[1995] ICR 988
England and Wales
Citing:
Cited – Age Concern Scotland v Hines EAT 1983
An employee in a unique position within a company could not have a normal retirement age. ‘For [Miss Hines] it was argued that she fell into a category of one, being the only counselling organiser employed by the appellants, and that there were . .
Cited by:
Cited – Dormers Wells Infant School v Gill EAT 16-Jul-1999
EAT Unfair Dismissal – Reason for dismissal including substantial other reason. . .
Cited – Wall v The British Compressed Air Society CA 10-Dec-2003
The applicant was employed as director-general, with his contract stating that his retirement age would be 70. Nobody else had a similar occupation within the organisation, and he said this therefore constituted his ‘normal age’ for retirement, . .
Cited – Wall v British Compressed Air Society EAT 7-Feb-2003
‘To the question ‘was there a normal retiring age for an employee holding the position held by Mr Wall immediately before his dismissal?’ the answer, in our view, is ‘yes, the only employee holding that position was Mr Wall himself, and it was 70′.’ . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 18 December 2021; Ref: scu.190501
