This case concerned the dismissal of an employee at the end of the week in which his 65th birthday fell.  Despite there being a normal retirement age of 65, the dismissal was held to be unfair as the employer had failed to specify a retirement date within the retirement notification required under Schedule 6 of the Employment Equality (Age) Regulations 2006. The notification merely specified that the employee would be retired “after” his 65th birthday.

Facts

Mr Howard was due to reach the age of 65 on 12 November 2008. Six months before this date in May 2008, Campbell's Caravan's ("CC") wrote to Mr Howard reminding him that in accordance with the company policy located within the employee handbook and contract of employment, his contract would cease “after his 65th birthday”.  Mr Howard was advised by CC that he did have the right to request to continue working after his 65th birthday. Mr Howard replied that he did wish to continue working.

Mr Howard was then laid off in September 2008 due to a downturn in work.  Mr Howard was told that CC would be in touch on a weekly basis and that the lay-off was expected to last until mid-October. During this period Mr Howard carried out one day’s work for CC. Mr Howard wrote to CC making various complaints, amongst these was that he had never received a response to his request for an extension and that he had been singled out for lay off because he was due to retire shortly.  In October 2008 CC wrote to Mr Howard explaining that they would not be able to extend his employment beyond the age of 65. Mr Howard gave a week’s notice of resignation in November and he was informed by return letter that his employment had come to an end by way of retirement on 14 November and so his purported resignation had no effect.

Mr Howard brought claims for age discrimination and unfair dismissal on the basis that his retirement notification from CC did not specify his retirement date as is required by Schedule 6 of the Employment Equality (Age) Regulations. The Employment Tribunal dismissed the claims.

The EAT’s Decision

Mr Howard appealed the finding by the Employment Tribunal that there had been no age discrimination and that the dismissal was fair.

The EAT agreed with the Employment Tribunal that the dismissal for retirement complied with s98ZG of the Employment Rights Act 1996 and under Regulation 30 it was not unlawful age discrimination.

The EAT rejected Mr Howard’s appeal and found that a retirement date had been specified in the notification. They held that the use of the word ‘after’ to describe Mr Howard’s retirement ending after his 65th birthday was acceptable and on reading the entire notification, it would appear to anyone that the word ‘after’ would mean Mr Howard was to retire on his 65th birthday. 

Therefore, the EAT decided that CC had complied with the notification requirements under the Regulations set out in paragraph 4 of Schedule 6.

The EAT did comment that if the notification had not been sufficiently clear, it would not have been acceptable to rely on a reference to retirement information located in an employee handbook.  They went on to clarify that the employee should be given the essential information in the notification itself and should not have to follow a paper-trail in order to find it. Therefore an employer cannot rely on the argument that the information was given in another form and not give a notification.

The result in the case was that the EAT agreed with the Employment Tribunal that the Mr Howard’s dismissal for retirement was fair and that the notification was suitably clear, making the dismissal reasonable.  The EAT subsequently dismissed the appeal.

The judgment is available here.

Howard v Campbell's Caravans Ltd (Unfair Dismissal : Reason for dismissal including substantial other) [2011] UKEAT 0609_10_1205 (12 May 2011)