EAT AGE DISCRIMINATION
Automatically unfair reasons
Reason for dismissal including substantial other reason
The reason for the Claimant’s dismissal was retirement. The Employment Tribunal erred in holding that the Claimant’s claim of age discrimination failed by application of Regulation 30 of the Employment Equality (Age) Regulations 2006 when the 2006 regulations had been repealed (save for Schedules 6 and 8) by the implementation on 1 October 2010 of Schedule 27 of the Equality Act 2010 by Equality Act 2010 (Commencement No 4) Order 2010 para 2(15)(f). Further the ET erred in interpreting the pre-condition for the application of the savings provisions in Reg 5 of the Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 inconsistently with that of Schedule 6 para 2 of the 2006 Regulations as interpreted by the CA in Bailey v R and R Plant (Peterborough) Ltd  EWCA Civ 410. The effect was that where notice of impending retirement did not include a reference to the need for the employee to apply under Reg 5 of the 2006 Regs to be allowed to remain in employment, para 8 of Schedule 9 of the Equality Act did not apply nor did the Employment Rights Act 1996 s. 98ZG and 98(2)(ba). Once this legislative trail was explained by the Employment Appeal Tribunal to the parties, the Respondent conceded that the appeal must succeed. Cross appeal against the finding of automatic unfair dismissal under ERA s.98ZG allowed as that provision had been repealed and the saving provision in reg 5 of the 2011 Regs did not apply. Case remitted to a differently constituted ET to determine the age discrimination and unfair dismissal claims.
Updated: 18 November 2021; Ref: scu.514348