Case - Barclays Bank plc v O’Brien & Others

[1994] ICR 865 , Court of Appeal - Jane McNeill QC

The claimants were employees of the respondent bank. Under their contracts of employment they were required to retire at the age of 60. In practice, it was possible for them to apply for annual extensions and retire at 65. In November 1987, the bank issued a circular to all its employees that 60 would be the normal retiring age in future but that employees with a pensionable salary above a given maximum would be able to delay retirement until 65 subject to certain conditions. The trade union complained that this would cause economic hardship and therefore the bank issued a further circular indicating that those employees who had reached 55 on a given date would be able to apply for an extension. In June 1990, the employment of the claimants was terminated at a time when they were aged between 60 and 64. The claimants complained that they had been unfairly dismissed.

HELD: dismissing the appeal, that where an employer announced a policy setting a normal retirement age of 60 which was properly promulgated to the employees, that was the "normal retiring age" for the purposes of the Employment Protection (Consolidation) Act 1978 s.64(1)(b), notwithstanding that some employees could reasonably expect to retire at different ages for special reasons. This would be the case unless it could be established that the normal retiring age was a sham or that it had never been implemented or that it had been abandoned, in which case the alternative of 65 under the 1978 Act would apply. On these particular facts, the normal retiring age of 60 was genuine and the result of the letters was merely to create an exception for a special reason in response to representations from the trade union (Hughes v Department of Health and Social Security [1985] A.C. 776, Waite v GCHQ [1983] 2 A.C. 714, Chaplin v HJ Rawlinson [1991] I.C.R. 553 referred to).

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