Ms B Venkata, counsel For the v Respondent — 2021

The tribunal heard consolidated claims by Mr Tilley, Ms Morsy and Ms Suri against Egyptair Airlines Company. It found that the respondent introduced a retirement policy in October 2014 with a two-week consultation period, that the claimants did not raise any objection at the time, and that the policy was later applied to retire Mr Tilley in August 2018, Ms Morsy in January 2019, and Ms Suri in July 2020 after her retirement had been extended to state pension age while the policy was under review. The tribunal refused to admit Ms Suri's handwritten letter of 2 November 2014, and alternatively found that she had not properly ensured it was communicated to the respondent.

On direct age discrimination, the respondent accepted that the dismissals were less favourable treatment because of age, but relied on the policy's aims of intergenerational fairness and dignity for retiring employees. The tribunal held that those aims were capable of being legitimate in this workplace and were in fact legitimate here, taking account of the age profile of the workforce, the recruitment of younger staff, the respondent's generous pension provision, and the absence of formal performance management. It found that the policy reduced the predominance of older workers and that the respondent had also used limited discretion in specific cases, including Mr B's specialist role and Ms Suri's temporary extension to state pension age.

The tribunal further held that the policy was a proportionate means of achieving those aims. It found that the respondent did not have formal performance management procedures and that it had chosen not to performance manage the claimants as they approached retirement; the evidence before it included findings that Mr Tilley had not kept up with technological changes, that Ms Morsy had become less effective in the last two years of her employment, and that Ms Suri had become less effective and had absences supported by medical evidence. It concluded that the policy balanced the burdens and opportunities between older and younger workers, and that the claimants' suggested alternatives would not have achieved the same result.

The unfair dismissal claim also failed. The tribunal held that the reason for dismissal was retirement, which was a potentially fair reason as some other substantial reason under s.98(1)(b) ERA 1996, and that the respondent acted reasonably under s.98(4) ERA 1996. It said there was no need to go further into the Polkey issue. No remedy was assessed in this judgment; the case was decided on liability only.