Waite (Appellant)
v.
Government Communications Headquarters
(Respondents)
JUDGMENT
Die Jovis 21° Julii 1983
Upon Report from the Appellate Committee to whom was
referred the Cause Waite against the Government
Communications Headquarters, That the Committee had heard
Counsel as well on Monday the 13th as on Tuesday the 14th
days of June last upon the Petition and Appeal of Lieutenant
Colonel (Retired) John Albert Waite of 13, Bleasby Gardens,
Lansdown Road, Cheltenham, Gloucestershire praying that the
matter of the Order set forth in the Schedule thereto,
namely an Order of Her Majesty’s Court of Appeal of the 20th
day of December 1982 might be reviewed before Her Majesty
the Queen in Her Court of Parliament and that the said Order
might be reversed, varied or altered or that the Petitioner
might have such other relief in the premises as to Her
Majesty the Queen in Her Court of Parliament might seem
meet; as also upon the Case of the Government
Communications Headquarters lodged in answer to the said
Appeal; and due consideration had this day of what was
offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty’s Court of
Appeal of the 20th day of December 1982 complained of in the
said Appeal be, and the same is hereby, Affirmed and that
the said Petition and Appeal be, and the same is hereby,
dismissed this House: And it is further Ordered, That there
be no Order as to Costs in this House or in the Court of
Appeal.
Cler: Parliamentor:
HOUSE OF LORDS
WAITE
(APPELLANT)
v.
GOVERNMENT COMMUNICATIONS HEADQUARTERS
(RESPONDENT)
Lord Fraser of Tullybelton
Lord Keith of Kinkel
Lord Scarman
Lord Bridge of Harwich
Lord Templeman
Lord Fraser of Tullybelton
My Lords,
The main question raised in this appeal concerns the proper construction
of the expression ” the normal retiring age ” where it occurs in the Trade
Union and Labour Relations Act 1974 schedule 1 paragraph 10. The
expression was used in the same context in section 28 of the Industrial
Relations Act 1971, which was repealed, and re-enacted with amendments
which are not here relevant, by the 1974 Act. The 1974 Act itself has
now been repealed by the Employment Protection (Consolidation) Act 1978.
Section 64 of the 1978 Act re-enacts paragraph 10 of schedule 1 of the
1974 Act with further amendments. The 1974 Act was the legislation in
force at the time which is material for this appeal, and I shall refer only to it.
A subsidiary question as to the proper construction of certain Civil Service
regulations is also raised.
The appellant, Lieutenant Colonel Waite, was born on 30th October 1917.
He had a distinguished career in the army and attained the rank of
Lieutenant Colonel in the Royal Signals Regiment. In 1961 he left the
army in order to take up employment with the respondent’s predecessors, the
London Communications Electronic Security Agency, who were then
advertising for officers with practical experience of telecommunications. His
employment with them began on 4th December 1961, when he became a
temporary Civil Servant with the grade of Higher Executive Officer. On
13th March 1967 he became an ” Established ” Civil Servant with pension
rights. The appellant now accepts that the contractual terms and conditions
of employment applicable to him from and after 13th March 1967 were
those contained in the Civil Service Code, amplified in some respects by
the departmental policy of his employing department. Before the Court of
Appeal the appellant had argued that the age at which he could be compelled
to retire depended upon the terms of his original employment as a temporary
Civil Servant but the Court of Appeal, and the Tribunals, decided against
that contention and he now accepts their decision on that issue.
On 30th April 1978 the appellant was compulsorily retired. On that date
he was aged sixty and a half years. He had not completed the twenty years
of reckonable service with the respondents and their predecessors necessary
to qualify for a full pension. He had in fact completed slightly over
sixteen years of service reckonable for pension. On his retirement he was
immediately re-employed in a lower grade as a Clerical Officer; in the
technical language of the department he ” regressed “. Thereafter he worked
as a clerical officer, without prejudice to his contention that the respondents
had had no power to compel him to retire on 30th April 1978. In July 1978
the appellant complained to an Industrial Tribunal that he had been unfairly
dismissed. The respondents at first denied that his dismissal had been
unfair, but they no longer maintain that denial. They also took, and still
maintain, the preliminary point that the Industrial Tribunal had no
jurisdiction to entertain the appellant’s application, on the ground that,
before the date on which his employment was terminated, he had attained
the normal retiring age for an employee holding the position which he held.
For that point they rely on paragraph 10(b) of schedule 1 to the 1974 Act.
Paragraph 10 is in Part II of the schedule which is the Part dealing with
” unfair dismissal “. Paragraph 4 which is also in Part II provides that in
2
every employment to which it applies every employee shall have the right not
to be unfairly dismissed by his employer, and that the remedy of an employee
who is unfairly dismissed is by way of complaint to an Industrial Tribunal.
Paragraph 10 provides as follows: —
” 10. Subject to paragraph II below, paragraph 4 above does not
” apply to the dismissal of an employee from any employment if the
” employee—
” (a) was not continuously employed for a period of not less than
26 weeks ending with the effective date of termination, or
” (b) on or before the effective date of termination attained the age
” which, in the undertaking in which he was employed, was the
” normal retiring age for an employee holding the position which
” he held, or, if a man, attained the age of sixty-five, or, if a
” woman, attained the age of sixty; . . . .”.
The ” effective date of termination ” in relation to an employee whose
contract of employment is terminated by notice means the date on which the
notice expires, see paragraph 5(5)(a) of the schedule. ” Position ” is defined
in section 30 of the Act as follows: –
” ‘ position ‘, in relation to an employee, means the following matters
” taken as a whole, that is to say, his status as an employee, the nature
” of his work and his terms and conditions of employment; “.
For reasons which I shall explain when I come to consider the subsidiary
question, I am of opinion that the retiring age laid down in the terms and
conditions of the appellant’s employment (which I shall call the ” contractual
” retiring age “) for a person holding his position was 60. The respondents
had power, in their discretion, to retain him in his position after he had
attained the age of 60 and until he reached the age of 65, and they did
in fact retain him until he was 60 1/2 in order to carry out a particular task,
but he had no right under the terms of his employment to be retained after
attaining the age of 60. Such retention was entirely a matter for the
respondents’ discretion. Nevertheless the appellant contends that on
30th April 1978 when he was dismissed, he had not attained the normal
retiring age for an employee in his position, and therefore that the Industrial
Tribunal had jurisdiction to consider his complaint. Mr. Tabachnik, who
appeared for the appellant, in opening the appeal naturally put his
contention at its highest, and he submitted that the expression ” normal
” retiring age ” in paragraph 10(b) simply meant the usual retiring age, or
the age at which persons holding the position generally retired in the normal
course of events, and that the contractual retiring age, if any, was irrelevant.
He said that, if there is no practice sufficient to establish a usual retiring age,
because employees retire at various different ages, then there is no normal
retiring age and the alternative provided by paragraph 10(b), namely the
age of 65 for a man or 60 for a woman, will apply, in accordance with the
decision of this House in Nothman v. Barnet London Borough Council
[1979] I.C.R. 111. The respondents’ original contention was that the
contractual retiring age for employees holding the appellant’s position
conclusively fixed their normal retiring age, and that any departure from the
contractual retiring age in practice was irrelevant. Between these extreme
contentions, various intermediate positions were explored in the course of
argument.
Considering that the expression ” normal retiring age ” in its present
legislative context dates only from 1971, it has been the subject of judicial
exposition to an extent which is remarkable both in amount and in variety.
I must refer to some of the authorities. In Ord. v. Maidstone and District
Hospital Management Committee [1974] I.C.R. 369, a case which Mr.
Tabachnik described as the sheet anchor of the appellant’s case, Sir John
Donaldson, sitting as President of the National Industrial Relations Court,
expressed the opinion at page 372 D that the ordinary meaning of the words
” normal retiring age ” is ” the age at which the employees concerned usually
retire “. But that was a case where there was no contractual retiring age
for the group of employees to which the appellant belonged—namely Mental
Health Officers. In that respect the case is distinguishable from the present.
3
Sir John Donaldson’s definition of ” normal retiring age ” was disapproved
by the Court of Appeal in Nothman v. Barnet London Borough Council
[1978] I.C.R. 336 where the employee was a woman teacher. The contracts
of employment of ail teachers, men and women, provided for automatic
retiral at age 65, with no power to the employers to grant any extension.
The teacher concerned was dismissed when she was aged 61. The Court of
Appeal (reversing the Employment Appeal Tribunal) held that the normal
retiring age in any particular profession was the age at which the employees
in that profession ” must retire or should retire ” in accordance with their
contracts—see per Lord Denning M.R. at 343 D. Lawton L.J. at page 345 G
said that counsel for the employers had submitted that there was no normal
retiring age for their assistant teachers. The learned Lord Justice then said
this:
” He [counsel] alleged before us—but did not call any evidence
” before the Industrial Tribunal to establish that this is so—that the
” Council’s assistant teachers retire at all ages, some after 65, others
” well before that time. This submission may have been founded on the
” definition of ‘ normal retiring age ‘ which Sir John Donaldson gave
” in Ord.”
Lawton L.J. then quoted the definition and proceeded at p. 346:
” I do not accept Sir John’s definition as being correct. I construe
” the word ‘ retiring ‘ in the phrase ‘ the normal retiring age ‘ as having
” gerundial qualities so as to give it the sense of ‘ must ‘ or ‘ should ‘.
” It follows that the normal retiring age of teachers employed by the
” Council is the age at which they would have to retire unless their
” service was extended by mutual agreement. This age was 65. The
” conditions of employment said so.”
Accordingly that case is authority for the proposition that the normal
retiring age for an employee is to be found by looking exclusively at the
conditions of employment applicable to the group of employees holding his
position.
When the case of Nothman came on appeal to your Lordships’ House,
cited supra, it was decided on another point, and the only reference to the
weight to be given to the contractual retirement date was made by Lord
Salmon who appears to have assumed that it was conclusive—see pages
113 E, 115 G, 116 B and 116 F. But as the point was not argued in this
House I do not regard anything said here as indicating the considered view
of the House or any of its members.
The decision of the Court of Appeal in Nothman has stood until the
present time though not without some judicial criticism especially in Howard
v. Department of National Savings [1981] I.C.R. 208 from Ackner L.J. and
Griffiths L.J. and Secretary of State for Trade v. Douglas [1983] I.R.L.R. 63
from Lord MacDonald.
In Post Office v. Wallser [1981] 1 All E.R. 668 the Court of Appeal held
that the normal retiring age was a matter of evidence and did not depend
exclusively on the relevant contract of employment. Some of the observa-
tions in that case are not altogether easy to reconcile with what had been
said in Nothman supra but I respectfully agree with the view expressed by
my noble and learned friend Lord Bridge (who was then Bridge L.J.) at
page 673 as follows:
” I agree with the broad proposition that the normal retiring age
” within the meaning of [paragraph 10 of schedule 1 of the 1974 Act]
” is not necessarily to be discovered in the contract of employment of
” the group of workers with whom the Court or Tribunal is concerned,
” but it does seem to me that when contractual terms and conditions
” of employment do govern the age of retirement of the relevant group,
” those terms provide the best evidence which will prevail to determine
” what is the normal age of retirement, unless effectively contradicted
” by other evidence.” (Emphasis added.)
4
In Howard v. Department for National Savings supra the Court of Appeal
reverted to the view that the contractual retiring age, express or implied,
conclusively fixed the normal retiring age, and they also said that unless
a contractual retiring age is either expressed or to be implied, it is impossible
to establish that there is any normal retiring age. But in Duke v. Reliance
Systems Ltd. [1982] I.C.R. 449, where there was no express contractual
retiring age, the Employment Appeal Tribunal took a more flexible view.
Browne-Wilkinson J., delivering the judgment of the Tribunal, first held
that no contractual retiring age could be implied, and then proceeded to
consider whether there was evidence of practice which established a normal
retiring age. In my opinion that was the correct approach.
I have reached the opinion that the Court of Appeal in Nothman, supra,
stated the law in terms which were too rigid and inflexible. If the normal
retiring age to be ascertained exclusively from the relevant contract of
employment, even in cases where the vast majority of employees in the
group concerned do not retire at the contractual age, the result would be
to give the word ” normal ” a highly artificial meaning. If Parliament had
intended that result, it would surely not have used the word ” normal ” but
would have referred directly to the retirement age specified as a term of
the employment. Moreover in a case where, unlike Nothman, the contract
provides not for an automatic retiral age but for a minimum age at which
employees can be obliged to retire, it would be even more artificial to treat
the minimum age as fixing the normal age, as the respondents would have
us do, even in a case where the minimum age has become a dead letter in
practice. By no means all contracts of employment specify the age, or the
minimum age, of retirement; indeed outside of large organisations like the
Civil Service it is probably exceptional for the age of retirement to be
specified. So, if the normal retiring age can be ascertained only from the
terms of the contract, there will be many cases in which there is no normal
retiring age and in which the statutory alternatives of 65 for a man and 60
for a woman will automatically apply, although some other age may be
well established and recognised in practice. If that were the law it might
operate harshly in the case of women employees over the age of 60, as they
would never be entitled to complain to the Industrial Tribunal of unfair
dismissal unless they could establish that they were subject to a contractual
retiring age higher than 60.
I therefore reject the view that the contractual retiring age conclusively
fixes the normal retiring age. I accept that where there is a contractual
retiring age, applicable to all, or nearly all, the employees holding the
position which the appellant employee held, there is a presumption that the
contractual retiring age is the normal retiring age for the group. But it is
a presumption which, in my opinion, can be rebutted by evidence that there
is in practice some higher age at which employees holding the position are
regularly retired, and which they have reasonably come to regard as their
normal retiring age. Having regard to the social policy which seems to
underlie the Act—namely the policy of securing fair treatment, as regards
compulsory retirement, as between different employees holding the same
position—the expression ” normal retiring age ” conveys the idea of an age
at which employees in the group can reasonably expect to be compelled to
retire, unless there is some special reason in a particular case for a different
age to apply. ” Normal ” in this context is not a mere synonym for
” usual “. The word ” usual ” suggests a purely statistical approach by
ascertaining the age at which the majority of employees actually retire,
without regard to whether some of them may have been retained in office
until a higher age for special reasons—such as a temporary shortage of
employees with a particular skill, or a temporary glut of work, or personal
consideration for an employee who has not sufficient reckonable service to
qualify for a full pension. The proper test is in my view not merely statistical.
It is to ascertain what would be the reasonable expectation or understanding
of the employees holding that position at the relevant time. The contractual
retiring age will prima facie be the normal, but it may be displaced by
evidence that it is regularly departed from in practice. The evidence may
5
show that the contractual retirement age has been superseded by some
definite higher age, and, if so, that will have become the normal retiring age.
Or the evidence may show merely that the contractual retiring age has been
abandoned and that employees retire at a variety of higher ages. In that
case there will be no normal retiring age and the statutory alternatives of
65 for a man and 60 for a woman will apply.
In the present case the evidence does not establish that there was any
practice whereby employees holding the position which the appellant held
were permitted to retain their office after attaining the minimum retiring
age of 60. The figures for the six years 1973 to 1978 inclusive show that
a total of 41 officers holding the same position as the appellant retired. I
use ” retired ” to include some who ” regressed “. Of that total, 30 retired
or regressed at the age of 60. Eleven were retained after they had attained
age 60, but we know nothing of the reasons for their retention. The fact
that just over one quarter of the relevant group of officers were retained after
they had attained age 60 falls far short of showing that the contractual retiring
age had been abandoned or departed from. If the case had been a narrow
one on its facts, one in which a tribunal might reasonably have taken the
view that the contractual age had been abandoned, your Lordships might
have thought it right to remit the case to an Industrial Tribunal to come to
a decision on the facts. But in my view no Tribunal applying the law
correctly could find that the contractual retiring age had been departed from
in this case. Accordingly I consider that the appellant has failed to show
that the Industrial Tribunal had jurisdiction to consider his complaint.
The subsidiary question which I have already mentioned concerns the
meaning of one paragraph, paragraph 10442, of the Civil Service Pay and
Conditions of Service Code. In order to appreciate that paragraph it is
necessary to refer to some of the other paragraphs on the same subject.
Paragraph 8572 provides as follows:-
” 8572. The minimum retiring age is the earliest possible age at
” which a Civil Servant can retire of his own volition and become
” entitled to immediate payment of pension benefits; this for most
” Civil Servants is age 60. . . .”.
” 8575. Provided his department is prepared to retain him, it is
” not necessary for a Civil Servant to retire at the minimum retirement
” age. . . . . “
” Age of retirement.
” 10441. An officer may on age grounds retire at his own wish or
” be retired at the instigation of his department. In either case,
” retirement may be effected when the officer has reached his minimum
” retirement age, or at any time thereafter. The date of retirement of
” any officer who is being retired is a matter entirely within the
” discretion of the head of each department.”
” 10442. An officer who has not completed 20 years’ reckonable
” service on reaching age 60 should, provided he is fit, efficient and
” willing to remain in service, be allowed to continue until he has
” completed 20 years’ reckonable service or has reached age 65,
” whichever is the earlier. Officers with short service generally have
” special claims to retention.”
The argument for the appellant on this part of the case is that the effect
of the provision in paragraph 10442 that an officer who has not completed
20 years reckonable service ” should ” be allowed to continue, gives him a
right to be retained. That involves reading the word ” should ” as if it
were ” must ” and in my view there is no justification for reading it in that
way. The same argument was presented on behalf of the appellant in
Howard v. The Department for National Savings, supra. Lord Denning M.R.
at page 211 said this:-
” The word ‘ should ‘ has been canvassed before us. It was
” suggested that it means ‘ must ‘. I do not agree. I think it means
” should normally be allowed. It still leaves the compulsory retirement
” age at 60—with a potential extension.”
6
I respectfully agree.
Paragraph 10442 appears to me to be addressed to the officer in each
department who has the responsibility of deciding whether to retain officers
who attain age 60 or not. It is intended as an instruction to him on the
general policy to be applied, and not to create rights in officers who attain
age 60. That view is reinforced by the second sentence of paragraph 10442.
The reference there to officers with short service generally having ” special
” claims ” to retention is in my view entirely inconsistent with the suggestion
that they have a contractual right to be retained.
I am accordingly of opinion that the minimum retirement age, and the
contractual retirement age of officers such as the appellant is age 60.
I would dismiss the appeal.
As success on the main question of law was divided, and as the appeal
was to some extent a test case I would make no order for costs in this
House or in the Court of Appeal.
Lord Keith of Kinkel
My Lords,
I have had the benefit of reading in advance the speech of my noble
and learned friend, Lord Fraser of Tullybelton. I agree with it, and for the
reasons he gives I too would dismiss the appeal.
Lord Scarman
My Lords,
For the reasons given in the speech of my noble and learned friend,
Lord Fraser of Tullybelton, with whom I agree, I too would dismiss this
appeal. I also agree that no order should be made as to costs in this
House or the Court of Appeal.
Lord Bridge of Harwich
My Lords,
For the reasons given in the speech of my noble and learned friend,
Lord Fraser of Tullybelton, with which I entirely agree, I too would
dismiss the appeal.
Lord Templeman
My Lords,
For the reasons given in the speech of my noble and learned friend,
Lord Fraser of Tullybelton, I too would dismiss the appeal.
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