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Unfair Dismissal - Upper Qualifying Age

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The Employment Appeal Tribunal has handed down a judgment restating the law on the 'normal retirement age' and comprehensively destroying the attempts of some BA employees to claim age discrimination by the backdoor route of sex discrimination.

In Cross & ors. v British Airways, the EAT (Burton P. presiding) held:the existing law on 'normal' (contrasted with 'contractual') retirement ages was correct;the fact that some employees TUPE transferred to BA from British Caledonian (which had a different retirement age) some 17 years before could not impugn the tribunal's conclusion that the normal retirement age for BA staff had, in effect, harmonised;the approach of looking at several different 'pools', to decide if the retirement policy had disparate impact on one gender, was the correct approach;it is legimitate to take account of cost to the employer when deciding the justification issue in an indirect discrimination claim. Importantly, the EAT distinguished the position of a private company, which is entitled to rely on cost to justify a policy, with that of the state (and its notional 'bottemless purse') which, under EU law, is not permitted to justify an otherwise discriminatory social policy on grounds of cost. The EAT added that the employer cannot rely solely on questions of cost, but can put cost into the balance (along with such other justifications as may exist).

The case does not lay down any new propositions of law, but contains thoughtful analysis and a robust approach to the existing, complex, caselaw surrounding this area.

Cross (& ors.) v British Airways