This case concerned an employee’s request to continue working beyond retirement age. The facts can be found in our summary of the Employment Tribunal decision.

EAT decision

Compass appealed against the Employment Tribunal’s judgment that an employer should consider a request to work beyond retirement “in good faith”. A cross-appeal by Mr Ayodele against the earlier dismissal of his age discrimination claim was rejected at the initial sift.

Compass argued that the requirement to consider a request to continue working beyond retirement age “in good faith” would be reading words into the legislation. Compass referred to the existence of a “good faith” requirement in the draft Regulations but which was not contained in the final version of the legislation and, according to Compass, this omission was intentional as the requirement to consider a request “in good faith” would put an onerous burden on employers.

The EAT rejected these arguments.

The EAT upheld the Employment Tribunal’s decision and held that the duty to “consider” a request necessarily connotes an obligation to consider it in good faith. The EAT held that it would be contrary to both the letter and spirit of the legislation if it was enough for an employer simply to sit through the meeting with a closed mind as the result of a pre-determination of the outcome. 

That said, the EAT acknowledged that it will generally be very difficult to show bad faith on the part of the employer. The EAT commented that no inferences can be drawn from the refusal of a request, nor from the fact that an employer has a general policy against granting permission to work beyond retirement age. However, the rigid and inflexible rule which existed in this case was not acceptable. The EAT accordingly dismissed Compass’s appeal.

The judgment is available here.

Ayodele -v- Compass Group [2011] UKEAT 0484_10_1407