Employee having unique position in place of employment with contractual agreement to retire at aged 70 - dismissal before 70 - employee entitled to bring action for unfair dismissal

Wall v The British Compressed Air Society: CA (Lords Justice Simon Brown and Scott Baker and Mr Justice Evans Lombe): 10 December 2003

The claimant held the office of director-general of the defendant society.

He had a contractual agreement to retire at aged 70 but was dismissed before then.

He brought a claim for unfair dismissal.

The employment tribunal held, on the assumption that there was a contractual agreement for retirement at 70 and that his position was unique, that the agreement did not constitute the normal retirement age for the purposes of section 109 of the 1996 Act.

The appeal tribunal allowed his appeal and remitted the complaint of unfair dismissal.

The society appealed.

Andrew Blake (instructed by Hartley Linfoot & Whitlam, Sheffield) for the company; Michael Duggan (instructed by Darlingtons, Edgware) for the claimant.

Held, dismissing the appeal, that the word 'normal' in section 109(1)(a)(i) neither necessarily required nor compelled the existence of one or more comparators; that an employee who held a unique position in an undertaking could thus have a normal retiring age within the meaning of section 109(1)(a) of the Employment Rights Act 1996; that, accordingly, the claimant was not precluded from pursuing his unfair dismissal claim and the appeal would be dismissed.