Case - Mrs Evbenata v. South West London and St George’s Mental Health NHS Trust

UKEAT/0167/14/DM, EAT - Ian Scott
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The Tribunal addressed the fairness of a “retirement” dismissal under ordinary unfair dismissal principles pursuant to section 98 Employment Rights Act 1996 (ERA) and failed to consider whether or not there was compliance with the continuing notification duty in paragraph 4 of Schedule 6 of the Employment Equality (Age) Regulations 2006 (now repealed), and if so, whether the dismissal was automatically unfair under section 98ZG(2)(a) ERA 1996.  This was a material error of law.  The Employment Appeal Tribunal held that the notification duty under paragraph 4 carried with it the same strict duty to refer expressly to paragraph 5 of Schedule 6, as the Court of Appeal has held is imposed by paragraph 2: see R & R Plant (Peterborough) Ltd v Bailey [2012] EWCA Civ 410 (CA).  Accordingly, there was a failure to notify under paragraph 4 Schedule 6 and the dismissal was automatically unfair.  The parties agreed that the Employment Appeal Tribunal should substitute this finding with a basic award only in light of the Tribunal’s remaining findings.

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