The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case had otherwise been effectively settled.
Held: With considerable misgivings, the court agreed to hear the appeal. The appeal failed. This was a case on indirect discrimination. There were four questions: was the length of service criterion discriminatory; what was meant by benefit; was it a proportionate means of achieving a legitimate aim; did the use of the criteria reasonably fulfil a business need? A selection system ‘to reward long service by employees in any redundancy selection process is, viewed objectively, an entirely reasonable and legitimate employment policy, and one which a conscientious employer would readily and properly negotiate with a responsible Trade Union.’
Aikens LJ summarised the principles applicable on an application for declaratory relief: ‘(1) The power of the court to grant declaratory relief is discretionary.
(2) There must, in general, be a real and present dispute between the parties before the court as to the existence or extent of a legal right between them. However, the claimant does not need to have a present cause of action against the defendant.
(3) Each party must, in general, be affected by the court’s determination of the issues concerning the legal right in question.
(4) The fact that the claimant is not a party to the relevant contract in respect of which a declaration is sought is not fatal to an application for a declaration, provided that it is directly affected by the issue (in this respect the cases have undoubtedly ‘moved on’ from Meadows).
(5) The court will be prepared to give declaratory relief in respect of a ‘friendly action’ or where there is an ‘academic question’ if all parties so wish, even on ‘private law’ issues. This may particularly be so if it is a ‘test case’, or it may affect a significant number of other cases, and it is in the public interest to decide the issue concerned.
(6) However, the court must be satisfied that all sides of the argument will be fully and properly put. It must therefore ensure that all those affected are either before it or will have their arguments put before the court.
(7) In all cases, assuming that the other tests are satisfied, the court must ask: is this the most effective way of resolving the issues raised? In answering that question it must consider the other options of resolving this issue.’
Lady Justice Arden, Lord Justice Wall and Lord Justice Aikens
[2009] IRLR 576, [2010] ICR 1, [2009] EWCA Civ 387, [2010] 1 WLR 318, [2009] WLR (D) 157
Bailii, Times, WLRD
Employment Equality (Age) Regulations 2006, Trade Union and Labour Relations (Consolidation) Act 1992 188, Civil Procedure Rules 40.20
England and Wales
Citing:
Cited – Dyson v Attorney General CA 1911
Fletcher Moulton LJ considered the rule allowing a case to be struck out as an abuse of process: ‘Now it is unquestionable that, both under the inherent power of the Court and also under a specific rule to that effect made under the Judicature Act, . .
Cited – London Passenger Transport Board v Moscrop HL 1942
Lord Maugham said: ‘the courts have always recognized that persons interested are or may be indirectly prejudiced by a declaration made by the court in their absence, and that, except in very special circumstances, all persons interested should be . .
Cited – Sun Life Assurance Co of Canada v Jervis HL 1944
The parties had disputed the terms of an insurance policy. The House considered whether it could hear the case once the dispute had been settled.
Held: There was no remaining dispute for the House to settle. Viscount Simon LC said: ‘My Lords, . .
Cited – Kay v Commissioner of the Police of the Metropolis HL 26-Nov-2008
The claimant had been involved in a monthly cycle ride through central London which had continued for many years. The ride took place without any central organisation and without any route being pre-planned. They objected to being required to apply . .
Cited – Ainsbury v Millington (Note) HL 1987
There had been a dispute between the parties as to a council house tenancy, but by the time it came before the House, the tenancy had ceased to exist, and the action was academic.
Held: Once the parties have settled their dispute there remains . .
Appeal From – Rolls Royce Plc v Unite the Union QBD 17-Oct-2008
The company had entered into collective agreements with the union governing criteria and procedures for redundancy selection. The company said that the criteria were not compliant with the age discrimination regulations.
Held: The union was . .
Cited – Gawler v Raettig (Leave) CA 3-Dec-2007
Application for leave to appeal. . .
Cited – Bowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
Cited – R (A Child), Re; Birmingham City Council v LR and other CA 20-Dec-2006
The court considered whether it could continue with an appeal where the practical issues had been resolved.
Held: ‘Mr. Harrison explained that the appeal was being brought by the local authority as a ‘test case’ to obtain clear guidance . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Salem HL 3-Mar-1999
The House of Lords has the power to hear a case where the parties have in effect settled and there remains no lis at issue, but the House will not hear such an academic case where no general issue of importance is at stake, or the facts are . .
Cited – Cadman v Health and Safety Executive, intervener: Equal Opportunities Commission ECJ 3-Oct-2006
Social Policy – The court considered what went to make up age discrimination: ‘the Court acknowledged that rewarding, in particular, experience acquired which enables the worker to perform his duties better constitutes a legitimate objective of pay . .
Cited – Felix Palacios de la Villa v Cortefiel Servicios SA ECJ 16-Oct-2007
ECJ (Grand Chamber) Spain had legislated for compulsory retirement when it wanted to encourage recruitment; then abolished it when economic circumstances improved and it wanted to encourage people to stay in . .
Cited – Loxley v BAE Systems Land Systems (Munitions and Ordnance) Ltd EAT 29-Jul-2008
EAT AGE DISCRIMINATION
The claimant was excluded by the terms of a voluntary redundancy scheme because he had reached the age of 60. There were tapering provisions in place between the ages of 57-60. When . .
Cited – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
Cited – Guaranty Trust Co of New York v Hannay and Co CA 1915
A claimant does not need to have a subsisting cause of action against a defendant before the court will grant a claimant a declaration. The court considered the ambiguity in the meaning of the word ‘jurisdiction’: ‘The first and, in my opinion, the . .
Cited – Gouriet v Union of Post Office Workers HL 26-Jul-1977
The claimant sought an injunction to prevent the respondent Trades Union calling on its members to boycott mail to South Africa. The respondents challenged the ability of the court to make such an order.
Held: The wide wording of the statute . .
Cited – Feetum v Levy CA 2006
Jonathan Parker LJ discussed the granting of declarations: ‘things have indeed moved on since the Meadows case was decided; and the courts should not nowadays apply such a restrictive meaning to the passage in Lord Diplock’s speech in Gouriet’s . .
Cited – Gouriet v Union of Post Office Workers HL 26-Jul-1977
The claimant sought an injunction to prevent the respondent Trades Union calling on its members to boycott mail to South Africa. The respondents challenged the ability of the court to make such an order.
Held: The wide wording of the statute . .
Cited – MacCulloch v Imperial Chemical Industries Plc EAT 22-Jul-2008
EAT AGE DISCRIMINATION
UNFAIR DISMISSAL: Compensation
The claimant contended that she suffered both direct and indirect discrimination on grounds of age because of the way in which the employer’s . .
Cited by:
Cited – Milebush Properties Ltd v Tameside Metropolitan Borough Council and Others ChD 13-May-2010
The claimant sought a delaration that it had a right of way over an access road. The defendants said that the agreement fell foul of the 1989 Act.
Held: The claimant was not entitled to the declaration. Agreements under the 1990 Act are . .
Cited – Hutcheson v Popdog Ltd and Another CA 19-Dec-2011
The claimant had obtained an injunction to prevent the defendant publishing private materials regarding him. That injunction had been continued by consent but was no challenged by a third party news publisher.
Held: Leave to appeal was . .
Lists of cited by and citing cases may be incomplete.
Employment, Litigation Practice
Updated: 11 November 2021; Ref: scu.343894