Introduction

The case of Cross & Ors v. British Airways Plc ([2005] IRLR 423) represents a pivotal moment in UK employment law, particularly concerning the determination of the Normal Retiring Age (NRA) under unfair dismissal claims. This case involved five claimants—pilots and cabin crew—challenging British Airways' (BA) policy of mandatory retirement at age 55, seeking the right to work until 60. The Employment Tribunal initially ruled in favor of BA, a decision the claimants subsequently appealed. This commentary delves into the intricacies of the judgment, exploring the legal principles established, the precedents cited, and the broader implications for employment law.

Summary of the Judgment

The Employment Appeal Tribunal upheld the Employment Tribunal's decision favoring British Airways. The core issue revolved around whether the NRA was correctly established as 55, thereby excluding the claimants from unfair dismissal protections under Section 109 of the Employment Rights Act 1996 (ERA). The claimants argued that, due to a TUPE (Transfer of Undertaking) transfer from British Caledonian Airways (BCal) in 1988, their contractual retirement age should have been retained at 60, aligning with BCal's prior policy.

The Tribunal examined three primary claims:

• TUPE Claims: Arguing that their contractual retirement age of 60 should have been preserved post-transfer.
• SDA Claims: Alleging indirect sex discrimination under the Sex Discrimination Act 1975 (SDA) due to differing retirement ages for men and women.
• Piggy-Back Claim: Contending that if SDA claims succeeded for women, similar protections should be extended to men, resulting in BA being unable to set a uniform retirement age.

The Tribunal found in favor of the SDA claimants, identifying indirect sex discrimination, but ultimately dismissed the TUPE and Piggy-Back claims. The Employment Appeal Tribunal upheld these findings, emphasizing that the NRA remained at 55 and that BA's policies were justified based on economic and organizational reasons.

Analysis

Precedents Cited

The judgment extensively referenced landmark cases to establish the legal framework for determining the NRA and assessing indirect discrimination:

• Waite v GCHQ [1983] 2 AC 714 and Hughes v DHSS [1985] 1 AC 776: These cases laid the groundwork for defining the NRA as an objective norm derived from employment practices.
• Brooks v British Telecommunications plc [1992] ICR 414 and Barber v Thames Television plc [1992] ICR 661: Further refined the understanding of NRA versus contractual retirement age (CRA).
• Bilka-Kaufhaus v Weber von Hartz [1987] ICR 110: Addressed justifications for indirect discrimination based on economic grounds.
• Wilson v Thames Television plc [1994] ICR 865: Provided authoritative guidelines on defining NRA.
• Darmon v Bestuur van de Bedrijfsvereniging [1994] ECR 1-571 and Kutz-Bauer v Stadt Hamburg [2003] IRLR 368: Clarified that budgetary considerations alone cannot justify discrimination.

Legal Reasoning

The Tribunal's legal reasoning centered on distinguishing between NRA and CRA. While CRA is a contractual term, NRA is an objective standard reflecting the norm within a particular position or industry. The key points include:

• Establishing NRA: The Tribunal followed the guidelines from Barclays Bank plc v O'Brien, assessing what employees reasonably expected as their retirement age based on company policies and practices.
• TUPE Implications: The claimants argued that their NRA should remain at 60 post-transfer. The Tribunal held that although CRA was preserved, the NRA was objectively 55, unaffected by the TUPE transfer.
• Indirect Sex Discrimination: Under the SDA, BA's policy disproportionately disadvantaged women. The Tribunal applied the "Hampson test," balancing the discriminatory impact against BA's legitimate business justifications.
• Justifications for Discrimination: BA justified the retirement policy on economic grounds and its impact on pension schemes. The Tribunal accepted that these justifications were valid as long as cost considerations were not the sole factor.

Impact

This judgment has significant implications for employment law:

• Clarification of NRA: Reinforces the separation between CRA and NRA, emphasizing that an objective standard determines NRA irrespective of contractual terms.
• Indirect Discrimination Analysis: Highlights the need for thorough statistical and contextual analysis when assessing indirect discrimination claims.
• Justification for Discriminatory Policies: Establishes that economic justifications can be valid in defending discriminatory policies, provided they are not solely based on cost.
• Relationship between TUPE and NRA: Clarifies that TUPE transfers preserve contractual terms but do not necessarily alter objective standards like NRA.

Complex Concepts Simplified

Conclusion

The Cross v. British Airways Plc judgment serves as a cornerstone in understanding how employment policies intersect with statutory protections against unfair dismissal and discrimination. By delineating the distinction between NRA and CRA, and reaffirming the validity of economic justifications in defending discriminatory policies, the Tribunal provided clear guidance for both employers and employees. The case underscores the necessity for organizations to continually assess and, if necessary, adjust their retirement policies in alignment with evolving legal standards and organizational needs. Moreover, it highlights the importance of objective analysis in discrimination claims, ensuring that policies are both fair and justifiable within the framework of employment law.