Tajul-Arfeen v Health Protection Agency: EAT 29 May 2013

The Claimant was dismissed at age 65 consistently with the employer’s retirement policy. The Employment Tribunal found that he had been given proper notice of retirement and of the right to request that he be kept on for a further period. Such a request had been properly considered and had not been unfairly dismissed.
After the Employment Tribunal’s order had been made, the Court of Appeal gave judgment in R and R Plant (Peterborough) Ltd v Bailey [2012] EWCA Civ 410 (02 April 2012) in which it held that an employer was required to expressly tell an employee that he has a right to make a request not to retire pursuant to paragraph 5 of schedule 6 of the Employment Equality (Age) Regulations 2006.
It was common ground that precise statutory reference had not been made in the notice given in the instant case and that the finding of unfair dismissal had to be reversed: Employment Rights Act 1996 section 98ZG
The issue of compensation did not require remission. The basic award was agreed. No compensatory award was payable. It was inevitable, on the findings of fact, that the Claimant could (and would) have been fairly dismissed for retirement on the date he was dismissed.
The Employment Tribunal had rejected a claim that the Claimant had been paid less that his full salary. It had resolved against him an issue of disputed fact.
The appeal was dismissed. The Claimant could not be permitted to run a different factual case on appeal from that put to the Tribunal below. On the case that he had run below, the findings of fact made by the Employment Tribunal were matters for them and disclosed no error of law.

Luba QC
[2013] UKEAT 0393 – 12 – 2905
England and Wales


Updated: 20 November 2021; Ref: scu.515384