Appeal No. EAT/580/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 October 1993
	and 7 February 1994
	Judgment delivered on 19 September 1994

	Before

	HIS HONOUR JUDGE J BULL QC

	MR J H GALBRAITH CB

	MR D A C LAMBERT

THE POST OFFICE	APPELLANTS

MR F R PARKER	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR D GRIFFITH-JONES
     (of Counsel)
	The Solicitor
	The Post Office
	Impact House
	2 Edridge Road
	Croydon CR9 1PJ

For the Respondent	MR H FORREST
	Solicitor
	Humberside Law Centre
	95 Alfred Gelder Street
	Hull HU1 1EP	

	JUDGE BULL QC:  This is an appeal by the Post Office, the employers, against the decision of the Industrial Tribunal sitting at Hull on 18 July 1991 by which it decided upon the preliminary issue that it did have jurisdiction to hear the originating application of Mr F R Parker alleging that he had been unfairly dismissed.  The full reasons for that decision were sent to the parties on 28 August 1991.

	This case raised yet once again, in the context of an employee who is retained after the age of 60, the meaning of the phrase "normal retiring age" under Section 64(1)(b) of the Employment Protection (Consolidation) Act 1978 and of its application to the facts of this case.

	Section 64(1), as amended, provides that:  

"Subject to subsection (3), section 54 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 two years ending with the effective date of termination, or

	(b)attained the following age on or before the effective date of termination, that is to say -

		(i)if in the undertaking in which he was employed there was a normal retiring age for an employee holding the position which he held and the age was the same whether the employee holding that position was a man or a woman, that normal retiring age; and

		(ii)in any other case, the age of sixty-five."

	The statutory concept of "normal retiring age" was considered by the Court of Appeal in Brooks and others v British Telecommunications plc [1992] ICR 414 in judgments handed down on 27 November 1991, some three months after the decision of this Industrial Tribunal at Hull, which thus entered upon its decision without the help which the Court of Appeal provided in that case.

	Balcombe LJ there set out the common background to many of these cases, at p. 416 H:

"The business of B.T. originally formed part of the business of the Post Office.  On 1 October 1981 B.T. was established as a separate public corporation with a view to eventual privatisation.  Pursuant to the Telecommunications Act 1984 B.T. became a public limited company on 6 August 1984.

Since the time that B.T's business formed part of the business of the Post Office, the practice in relation to the retirement of E.T.G. grades was governed by an instruction issued in February 1972 and known as J1000.  The effect of this instruction was that an employee could be compulsorily retired at 60, but there were circumstances in which he might be retained in employment thereafter if he was fit, efficient and willing and there was a business need for his retention.   In practice those employees who wished to be retained at the age of 60 were retained, subject to fitness and efficiency.  In early 1982 Sir George Jefferson, the then chairman of B.T., issued a report to staff entitled "The need for change" in the course of which he stated "We need to review existing practices on the retention of staff over 60."

There followed much correspondence and discussion between B.T. and the trade unions on the issue of retention of employees after 60.  There were occasional communications from management to staff on the same question."

	The fact of this case are that by letter dated 19 May 1983, accepted by endorsement thereon by Mr Parker on 23 May 1983, the Post Office offered him employment as an Auxiliary Postman.  One of the conditions of that employment, which he accepted, was:

"the normal retirement age for Post Office employees is 60.  Retention beyond the normal retirement age may be possible subject to the needs of the Post Office."

	The policy of the Post Office was set out in Circular T0012 (formerly PHQ Circular 103/77) which dealt with the retention beyond age 60.  That provided:

"Conditions of retention

The normal age of retiring from Post Office employment is 60 years.  However, management may allow staff in grades represented by UCW to continue in Post Office employment" (where certain conditions were satisfied).

	On 30 November 1987 a letter was written to Mr Parker reminding him that the normal age of retirement from Post Office employment was 60 years, but asking whether he wished to be considered for continued employment beyond that age.  On 2 December 1987 Mr Parker indicated at the foot of that letter that he wished to be considered for continued employment beyond the normal age of retirement of 60 in accordance with the rules which govern retention after 60.  Mr Parker plainly fulfilled all the criteria required and by a letter dated 2 August 1988 the Post Office offered him continued employment without a break in his service.  The letter continued: 

"Please note that continued employment will be subject to review by the Post Office and three months notice on either side will be required for its termination.

If you accept this offer of continued employment it will constitute a variation in the terms and conditions of your employment."

	Mr Parker on the following day, 3 August 1988, signed in the space provided at the foot of that letter immediately after the sentence:  

"I accept this variation to the terms and conditions of my employment."

	Thereafter Mr Parker continued to work as an Auxiliary Postman at Ashby-cum-Fenby.  By his letter attached to the Originating Application of 11 March 1991, Mr Parker complained that after a reorganization at the beginning of 1990 he was transferred to the sub-office at Waltham some three miles away.  He was required to ride his bicycle fully loaded with one or two bags full of mail for three miles back to Ashby-cum-Fenby which was the farthest point of his delivery and then work his way back to Waltham, in all a distance of some eight to ten miles.  The severity of the weather in Northern Lincolnshire and the conditions of the rural districts in which he had to work were such that in his opinion to work that duty would result in complaints of late mail, and he sought to keep the moped which he had been allocated over the preceding three years.  This request was denied, and Mr Parker complained that there was a clash of personalities between himself and the sub-Postmaster.  On 13 September 1990 a formal letter was sent to him indicating that his continued employment beyond the normal retirement age of 60 was subject to review.  Thereafter on 13 December 1990 his employment was terminated.  Mr Parker in the letter attached to his originating application noted that his replacement was allowed to start duty 25 minutes before his starting time and that his replacement was transported, including his bicycle and bags of mail, to Ashby-cum-Fenby so that the total saving in time was, he asserts, some 40 minutes compared with the conditions under which he worked.   "If this adjustment had been made before I was dismissed there would have been no complaint about late mail" he complained.

	The dissenting view was that each case depends so much upon its own facts that the Industrial Tribunal were able properly to reach the decision which they did upon the evidence before them, especially considering the impact of the statistical evidence that in the relevant area of Doncaster in 1990 24 men were retained after the age of 60 and none left.  Upon that basis the minority would have upheld the decision of the Industrial Tribunal.

	It seems to the majority plain from the face of the documents before the Industrial Tribunal that the normal retiring age for those of all ages in the Applicant's position was 60 unless rebutted by appropriate evidence.  It was open to him to demonstrate that the policy had never been implemented in practice, although it had been made plain in the documents sent to him.  To that end, it seems, statistics for the Doncaster area were introduced.  Upon that aspect of this case the Industrial Tribunal made this finding:

"k)		It is clear, looking at the statistics as part of the evidence produced, that not only were the vast majority of postmen kept on after the age of 60 but, thereafter, they left for various reasons (the reasons we know not) between the ages of 60 and 65.  It would seem on that basis, subject to what we have to say about the law, that there was uncertainty about the retiring age between 60 and 65, if that is the period to which we have to look, rather then looking at the matter as from May 1983 when the normal retiring age was 60."

	In the judgment of the majority, if the Industrial Tribunal had had the advantage of reading the decision of the Court of Appeal in Brooks, and especially the judgment of Sir Christopher Slade at p.433 B-H and 434 A-B it would not have reached this conclusion.

	No-one can fail to feel considerable sympathy for Mr Parker who no doubt thought that he might expect to work for the Post Office until he attained the age of 65.  It is plain from the notes of evidence that Mr Parker was fortified in this, his view, by the fact that the overwhelming number of his colleagues did so stay on.  However in the course of his evidence he made two important concessions.  First, upon the subject of normal retiring age, the Chairman's note reads:

"I understand normal retiring age of 60 years - subject to discretion of management as to retention."

	Secondly the notes disclose his answer:

"Agrees I suppose it's no more than a hope to be retained."

[in the context of retention after the age of 60]

	In our judgment the relevant consideration for the Industrial Tribunal was, as Balcombe LJ pointed out in Brooks at p.424 D (with which Sir Christopher Slade agreed at page 434 D):

"what at the effective date of termination of the applicant's employment and on the basis of the fact then known, was the age at which employees of all" (ages) "in the applicant's position could reasonably regard as the normal age of retirement applicable to the group."

	The Industrial Tribunal in paragraph 5(i) of their reasons dealt with this aspect of the case in this way:

"i)		His `expectation' was that he would be kept on between the age of 60 and 65.  That, he said, was a `hope', but in reality, from the evidence, it was clearly more than a mere `hope'.  The vast majority of postmen remained in employment with the Post office after the age of 60.  He knew that and upon that he based his `expectation'.  He did not know matters, which of course those people who worked on kept to themselves, as to whether or not they took pension or did not take pension.  Although Mr Bosworth referred to all those people over the age of  60 as `retained pensioners' that was not a term Mr Parker had heard and clearly it was a term which was inapplicable in his case because although he was `retained' he was not `a pensioner'."

	Had the Industrial Tribunal had the benefit of the decision of the Court of Appeal in Brooks prior to reaching its decision in this case we are sure that it would not have expressed itself in this way.  In our judgment the Industrial Tribunal fell into error in deciding this case upon the basis of what the applicant himself thought and expected, and failed to direct itself by reference to the test set out in Brooks.  In this paragraph the Industrial Tribunal looked at this case through the eyes of the applicant and not by reference to what Slade LJ in Hughes v DHSS [1984] ICR 551 at p.564 D characterised as:

"the reasonable expectation or understanding of the employees holding that `position' at the relevant time".

	If the Industrial Tribunal had approached this case in the way in which the House of Lords and the Court of Appeal have directed that such issues should be approached then it seems to us that the only conclusion which could have been reached upon the documents and upon the evidence was that the normal retirement age in this case was 60.

	The burden of proof is, of course, upon the applicant and we would respectfully adopt the words of Lord Fraser of Tullybelton in Waite v Government Communications Headquarters (1983) ICR p.663 C:  

"... if the case had been a narrow one on its facts, one of which a Tribunal might indeed 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."

	We have already indicated that the Industrial Tribunal might have been misled by the statistics which were adduced in this case.  However, it seems to us that on the overwhelming evidence on the documents and upon the concessions made by the applicant in evidence, there can be only one answer in this case on a correct application of the law, and that is that the applicant failed to show that an Industrial Tribunal had jurisdiction in the present case.  The appeal is therefore allowed and a declaration to that effect substituted.