Cross and another v British Airways plc: [2006] EWCA Civ 549

CA: Auld, Laws and Richards LJJ: 11 May 2006

In 1988 the airline by which the claimants were employed as flying crew, with a contractual entitlement to retire at 60, was taken over by the respondent employer, which had a rule requiring flying crew to retire at 55. Soon after the transfer the first claimant entered into a contract of employment with the employer which stipulated compulsory retirement at 55. The second claimant signed a contract in similar terms, though the compulsory retirement age was not drawn to her attention. The first claimant reached 55 in 2002, the second in 2001, and both were then required to retire. They brought proceedings for unfair dismissal, contending that, by virtue of regulation 5 of the Transfer of Undertakings (Protection of Employment) Regulations 1981, their "normal retiring age" remained at 60, so that section 109 of the Employment Rights Act 1996 did not operate to deprive them of the right not to be unfairly dismissed. The employment tribunal found that flying crew who had been employed by the transferor were in a different "position" from other flying crew employed by the employer for the purposes of section 109 and had a retirement age of 60, but held that the claimants had, in the event, been fairly dismissed. Dismissing an appeal by the claimants, the Employment Appeal Tribunal held that the statutory "normal retiring age" was not a right capable of being transferred under the 1981 Regulations and that, by the time they came to be dismissed, the normal retiring age of both claimants was 55, and, accordingly, they were precluded by section 109 from pursuing their claims.

The claimants appealed.

The Court of Appeal held:
The "normal retiring age" in section 109 of the Employment Rights Act 1996 was conceptually different from a contractual retirement date, though there was a presumption that a contractual retirement age applicable to all or nearly all employees in a group was the normal retiring age for the group. The normal retiring age of an employee for the purposes of section 109 fell to be determined by reference to the facts as they affected all the employees holding the same position at the time of his dismissal. Accordingly, regulation 5 of the Transfer of Undertakings (Protection of Employment) Regulations 1981 could not have the effect of transferring to their employment with the transferee the claimants' pre-transfer normal retiring age of 60, and at the time of their respective dismissals it was plain that the "normal retiring age" applicable to those in the same position as the claimants was 55.

The appeal was dismissed.

Appearances: Robin Allen QC (Charles Russell) for the claimants; Nicholas Underhill QC and Bruce Carr (Stevens & Bolton LLP, Guildford) for the employer.