Appeal No.	 EAT/181/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 July 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR P R A JACQUES CBE
MR J A SCOULLER

MRS E F MELROSE	APPELLANT

REIGATE HOUSING SOCIETY FOR THE ELDERLY	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR D C MELROSE
(Representative)
	
For the Respondent	MR W E P McILROY
(Representative)
Reigate Housing Society for the Elderly
Eversfield
56 Reigate Road
Reigate

		JUDGE CLARK:   The Appellant, Mrs Melrose, commenced employment with the Respondent Housing Society as Matron/Manager of their Eversfield Retirement Home on 1 November 1991.  She was then aged 57 years.

	Her written Contract of Employment, and that of the Deputy Matron, also a woman, provided that the normal retiring date was the post-holder’s 60th birthday.  There was provision for a further extension beyond that date at the sole discretion of the committee which ran the home.  By letter dated 24 June 1994 the Appellant was informed by Mr Wilkins, the then committee Chairman, that her contract would not be extended beyond her 60th birthday on 15 October 1994.  That was a dismissal.

	She raised a grievance concerning her dismissal which was heard on 2 September 1994, and dismissed by a letter from Mrs Ray, Chairman of the grievance sub-committee, dated 6 September 1994.  Dealing with the Appellant’s complaint of sex discrimination Mrs Ray said this:
“Considering the issue of “sexual-discrimination” it is our understanding that an employer cannot set different retirement ages for men and women in comparable positions.  We attach significance to the word “comparable”.  There is only one position of Matron (Manager) at Eversfield with a Contract providing for retirement at age 60.  Also the Deputy is female and holds a Contract of similar wording.”

	Following that letter the Appellant presented an Originating Application to the Central Office of Industrial Tribunals on 21 September 1994.  She made two complaints:
(1)	Direct sex discrimination - comparing herself with a male handyman who was not 	required to retire until age 65.
(2)	Unfair dismissal - she claimed that the committee had refused to honour an oral 	commitment to extend her contract beyond age 60.

The matter came before the London (South) Industrial Tribunal on 28 and 29 September 1995.  In a reserved decision, following further deliberation in Chambers on 3 November 1995, the Tribunal unanimously dismissed both complaints.  Extended Reasons for that decision are dated 8 January 1996.

	Against that decision Mrs Melrose, with the assistance of her husband, who has represented her throughout, served Notice of Appeal dated 16 February 1996.

	The short point raised in the appeal is identified in the judgment of Judge Byrt QC who presided at a Preliminary Hearing held in this case on 28 October 1996.  The Industrial Tribunal found as a fact on the evidence, that had a male matron/manager been employed, he would also have had a contractual and normal retirement age of 60.  It distinguished the case of the male handyman who worked until age 65 on the basis that he was not a true comparator.  It relied on the Court of Appeal decision in Bullock v Alice Ottley School [1993] ICR 138 for the proposition that the Sex Discrimination Act 1975 does outlaw different retiring ages for different grades for the purposes of making the necessary comparison under Section 5(3) of the Act.

	It was and is the Appellant’s case on appeal that the Tribunal here reached a perverse finding of fact.  The submission made by Mr Melrose at the Preliminary Hearing is recorded at page 1 G-2 A of the judgment of Judge Byrt in this way:
“Mr Melrose who has argued this matter on behalf of the Respondents [sic] has said that there was a vital piece of evidence which undermines the conclusions the Tribunal came to.  The evidence was that of Mrs Horsfall and Mrs Ray, who both indicated in evidence that they followed the State old-age pension ruling to the effect that women retire at 60 and men at 65, and that they were not aware of the Sex Discrimination Act at all.  In those circumstances that evidence lies ill with the conclusions that the Tribunal came to, to the effect that there was no discrimination between the retirement age of male and female for this particular position.”

	It was, of course, quite impossible for the Employment Appeal Tribunal to judge the force of that contention at that ex-parte hearing, and accordingly a direction was given that the Chairman be requested to provide her Notes of Evidence.

	Those Notes are now before us.  They do not support the Appellant’s argument.  as to the first point raised at the Preliminary Hearing it is correct to say that in evidence Mrs Horsfall was cross-examined about the handyman retiring at age 65.  Her reply recorded by the Chairman, is as follows:
“Handyman - don’t’ think he was allowed to go on till 65.  Chairman then asked why wasn’t he allowed to retire at 60 and witness replied don’t know why he was allowed to carry on until 65.  Was in tied cottage and may have related to stay to state retirement age.”

	However, no general concession was made, either by Mrs Horsfall or Mrs Ray, that retirement across the board was at age 60 for women and 65 for men.  On the contrary.  Mrs Horsfall’s evidence was that the normal retirement age of 60 inserted into the Appellant’s Contract of Employment, was unrelated to gender.

	That evidence was accepted by the Industrial Tribunal at paragraph 9 of their reasons where they say:
“.... There have been no male matron/managers, but the Tribunal accepts the evidence of Mrs Horsfall that there has never been a bar to a male manager; there have simply been no male applicants.  The Tribunal accepts the Respondent’s evidence that the requirement to retire at 60 was always there and unrelated to gender.  It finds that a male matron/manager would be required to retire at 60.”

	That is a finding of fact supported by the evidence with which we cannot interfere.  It forms the basis for the Tribunal’s conclusion expressed at paragraph 23 of the reasons in this way:
“.... Contrary to Mr Melrose’s assertion, there is no evidence whatsoever that if a man had been appointed matron/manager, or deputy, he would not have been required to retire at 60.  Indeed, the evidence of the other grades of staff which show people of both sexes working beyond the age of 60 and even beyond 70 indicates to the Tribunal that where a retirement age has been stated in the contract, it was not gender-based.”

	It follows that we cannot uphold Mr Melrose’s first complaint of perversity identified by this Tribunal at the Preliminary Hearing.  As to the second point that both witnesses for the Respondent said that they were not aware of the Sex Discrimination Act at all, Mr Melrose accepts that the Notes of Evidence do not record either Mrs Horsfall or Mrs Ray saying such a thing in evidence.

	On the contrary, the documentary evidence was to the opposite effect.  During the course of the grievance hearing held on 2 September 1994, Mrs Tidswell, the Respondent’s legal secretary, herself not a qualified lawyer, said in answer to the Appellant’s claim that on advice from the CAB and the Equal Opportunities Commission her contract was illegal.
“.... we too had taken advice as recently as the last two weeks which contradicted their advice.  She said she thought we would have to agree to differ for the moment on this point as none of us present were legally qualified.”

That grievance hearing was followed by Mrs Ray’s letter of 6 September 1994 and we have earlier in this judgment referred to the passage in her letter dealing with the complaint of sexual discrimination.  That passage would appear to be inconsistent with the contention that Mrs Ray was unaware of the Sex Discrimination Act.

	It follows that the basis upon which this appeal was allowed to proceed to a full hearing is wholly undermined by a perusal of the Chairman’s Notes and documentary evidence before the Tribunal in this case.

	However, before dismissing the appeal, we should add that Mr Melrose sought to raise a further point to the effect that the Tribunal had misapplied the principles laid down by the Court of Appeal in Bullock.  This submission, in effect, repeats the comparison sought to be made below on behalf of the Appellant between her case and that of the handyman who retired at age 65.  It was considered and rejected by the Tribunal on their findings of fact.  Again we can see no grounds for disturbing that finding and in the circumstances this appeal must be dismissed.