An employer may not rely on a blanket policy of requiring employees to retire at the age of 65; even if such a policy is in place (which is in itself permissible), it must approach requests
to be allowed to continue working with an open mind. Daniel Barnett’s Employment Law Bulletin reports:
In the case of Ayodele v Compass Group , the EAT has held that a request to remain in employment after the age of 65 must be considered 'in good faith'. An employer may not rely on a blanket policy of requiring employees to retire at the age of 65; even if such a policy is in place (which is in itself permissible), it must approach requests to be allowed to continue working with an open mind. Mr Ayodele was informed by his employer of its intention to retire him at age 65 and his entitlement to request an extension. He did so, but his request was refused without reasons, as was his appeal. He brought a claim for unfair dismissal and age discrimination. The employment tribunal upheld the Claimant's claim that he had been unfairly dismissed on the basis that the Respondent had not given genuine consideration to the request and was therefore in breach of their obligations under paragraphs 7 and 8 of Schedule 6 to the Employment Equality (Age) Regulations 2006. Unusually, at first instance the Claimant gave evidence that there had been substantial discussion of his request, whereas the Respondent's witness asserted that he had already decided that the policy would apply rigidly and the meetings were only a formality. On the basis of the Respondent's account, the ET and EAT held that a duty to 'consider' a request necessarily connoted an obligation to consider in good faith, in the sense that an employer must genuinely consider whether it should be accepted. However, the EAT noted that it will usually be very difficult to show bad faith. No inference can be drawn from the refusal of a request, nor from the fact that a policy exists of not agreeing to such requests. 20 July 2011 In this case the claimant, a football club’s team manager, resigned after his right to pick his team was for no reason removed after an Academy Director was appointed. His claim for unfair dismissal subsequently failed. Daniel Barnett’s Employment Law Bulletin reports: The EAT (Lady Smith) has handed down its decision in McBridge v Falkirk Football Club , which is authority for the propositions that: the duty not to act in a manner likely to undermine trust and confidence - the well-known 'Malik' test is judged from an objective standpoint, so an employer cannot rely upon factors in a particular industry, in this case, of 'an autocratic style of management' being 'the norm in football', as a defence to a breach of the implied term of trust and confidence. a term ought not to be implied into a contract of employment which is imprecise, unnecessary or not obvious. The Claimant, the Club's U19 team manager, resigned after his right to pick his team was arbitrarily removed after an Academy Director was appointed. At the employment tribunal, his claim for Constructive Dismissal failed; the tribunal, having implied into the Claimant's contract a term that he would relinquish his right to pick his team once an Academy Director was appointed, found no breach by the Club. The EAT overturned the employment tribunal's decision, substituting a finding of Constructive Unfair Dismissal, sending off the claim to a fresh tribunal for remedy. The EAT criticised the employment tribunal for implying a term in the Claimant's contract which contradicted an CONSTRUCTIVE DISMISSAL
CIPP Policy News Journal
09/10/2012, Page 40 of 234
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