Taylor v Secretary of State for Scotland, IRLB 643, House of Lords
• Taylor’s contract with the Scottish Prison Service specified 55 as the minimum retirement age although SPS retained a discretion to extend this to a maximum age of 60. On reaching 54, Taylor was told his employment would continue beyond the minimum retirement age. SPS subsequently introduced an equal opportunities policy which prohibited discrimination on a number of grounds, including age. This was incorporated into Taylor’s contract.
When Taylor was 58 he was forced to retire after SPS recruited younger staff with different skills. Taylor’s unfair dismissal complaint was dismissed but the tribunal upheld his age discrimination claim because SPS had acted contrary to the policy.
SPS successfully appealed and Taylor’s appeal to the House of Lords was dismissed. The prohibition against age discrimination was strictly contractual and the contract had to be construed as a whole. SPS’s contractual provisions on early retirement were unaffected by the subsequent introduction of the equal opportunities policy.
The same retirement age applied to everyone and Taylor was therefore treated the same as any other employee. The minimum retirement age was therefore not discriminatory.
What constitutes “an establishment”?
Mills & Allen v Bulwich, unreported, June 2000, EAT
• Bulwich was employed as a sales manager in Manchester until she was made redundant, along with 22 employees from the London office.
The tribunal held that Mills & Allen had failed to comply with its legal obligation to consult, because it made 20 or more employees redundant at “one establishment” within a 90-day period.
The tribunal took into account the ECJ decision in Rockfon where “establishment” meant “the unit to which the workers made redundant are assigned to carry out their duties”. It found that although there was no real organisational link between the Manchester and London sales teams, Mills & Allen treated the sales department as a distinct entity and Bulwich was “assigned” to the sales team.
Mills & Allen appealed, arguing that Bulwich was not part of “one establishment”. The EAT held that what constituted “one establishment” was a question of fact and upheld the decision.