The claimant had been employed by the third named respondent to carry out administration work and uphold the upkeep of the premises. In 2008 he received a letter from HR requesting he nominate a retirement date. The claimant replied that he was happy to remain working until his contract was up or if he had to go that he would do so at the end of July 2009. He also stated that no one had mentioned previously to him that 65 years was the age of retirement. He had spoken to the Regional Manager on one occasion and had told him that he did not want to retire and felt that he was being “forced out”. It was put to him that the age of retirement was in the company handbook which he received at the same time as his contract of employment, but he said he was unaware of such a date.

A representative of the third named respondent also gave evidence. He explained how the car testing contract had come to an end and it had been won by the first named respondent. At midnight on 23 December 2009, the first named respondent took over all staff and equipment of the third respondent.

The Tribunal determined that a transfer of undertakings had taken place on 23 December and that the first named respondent was the employer at the date of dismissal. The Tribunal also found that there was clear evidence that the provision regarding retirement age formed part of the contract entered into by the claimant on 28 August 2002.  However, he reached that age on 7 September 2003 and no effort was made by the third named respondent to enforce that term of the contract until November 2008 and even at that stage it was deferred until December 2009, at which stage the claimant was aged 71 years. The Tribunal found that the third named respondent was not entitled to rely on the condition, having unconditionally allowed the claimant to continue in work for many years past retirement age. Finally, the Tribunal found that the claimant was not dismissed by reason of redundancy as the work continued to be done.