Retire-and-return scheme leads to constructive dismissal claim, but breach of contract and age discrimination claims struck out
A consultant clinical scientist with 23 years' service resigned after a 'retire and return' scheme reduced her role. The tribunal struck out her breach of contract and age discrimination claims, but allowed her unfair dismissal claim to proceed.
1 min read · Last updated 19 May 2026
Case details
- #retire-and-return
- #comparator
- #strike-out
- #time-limits
- #constructive-dismissal
Key facts
- The claimant was employed as Consultant Clinical Scientist Head of Service from 2000/2004 to 26 July 2023.
- She retired on 31 March 2021 and was re-engaged on 2 April 2021 under a 'retire and return' scheme, reducing her role to 50% part-time.
- The claimant resigned on 3 May 2023, giving notice to expire on 26 July 2023.
- She started ACAS early conciliation on 16 June 2022 and presented her ET1 on 25 August 2022.
- The breach of contract claim was presented before the effective date of termination, so the tribunal had no jurisdiction.
- The direct discrimination and harassment claims were struck out as having no reasonable prospect of success.
Timeline
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Employment start
Claimant began employment with the respondent, later becoming Consultant Clinical Scientist Head of Service.
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Retirement
Claimant retired from her full-time role.
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Re-engagement
Claimant was re-engaged under the 'retire and return' scheme in a 50% part-time role.
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ACAS early conciliation started
Claimant began early conciliation with ACAS.
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ACAS certificate issued
ACAS conciliation certificate obtained.
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ET1 presented
Claimant presented her claim to the tribunal.
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Resignation
Claimant resigned, giving notice to expire on 26 July 2023.
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Preliminary hearing
Preliminary hearing before Employment Judge Hutchinson; amendment to add unfair dismissal claim allowed.
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Public preliminary hearing
Hearing to determine jurisdiction, time limits, and strike out of discrimination claims.
The legal issue
The tribunal had to decide whether the breach of contract claim was presented in time (it was not, as the claim was filed before the resignation took effect), and whether the direct age discrimination and harassment claims had reasonable prospects of success (they did not, as the claimant could not identify a comparator or show less favourable treatment).
The outcome
The tribunal struck out the breach of contract claim because it was presented before the effective date of termination, meaning the tribunal had no jurisdiction. The direct age discrimination and harassment claims were also struck out as having no reasonable prospect of success, as the claimant could not identify a comparator who was treated more favourably. However, the unfair dismissal claim was allowed to proceed to a final hearing.
No compensation was awarded as these claims were struck out.
Lessons & takeaways
- If you are considering a constructive dismissal claim, you must present your breach of contract claim after the effective date of termination, not before.
- Age discrimination claims require a comparator – someone in materially similar circumstances who was treated more favourably – or evidence of a discriminatory policy.
- A 'retire and return' scheme that reduces your role may not in itself amount to age discrimination if it is applied consistently and based on objective criteria.
- Presenting a claim too early can be fatal – the tribunal has no jurisdiction to hear a breach of contract claim that is brought before the employment has ended.
This case highlights the procedural pitfalls that can derail an otherwise potentially valid claim. The claimant, a consultant clinical scientist with 23 years' service, retired and was immediately re-engaged under a 'retire and return' scheme, but her role was reduced from full-time to 50% part-time. She later resigned, claiming constructive unfair dismissal, breach of contract, and age discrimination.
What went wrong for the claimant
The breach of contract claim was presented to the tribunal on 25 August 2022, but her resignation did not take effect until 26 July 2023. The tribunal had no jurisdiction to hear a breach of contract claim that was brought before the employment had actually ended. This is a common mistake – claimants must wait until after the effective date of termination to bring such claims.
The age discrimination claims also failed because the claimant could not identify a comparator – someone in a similar situation who was treated more favourably. The 'retire and return' scheme applied to all staff, and the reduction in hours was due to the role being part-time, not because of age. Without a comparator or evidence of a discriminatory motive, the claims had no reasonable prospect of success.
What the respondent did right
The NHS Trust was able to show that the 'retire and return' scheme was a genuine organisational measure, and that the claimant's role was reduced because the post was only 50% part-time, not because of her age. They also successfully argued that the breach of contract claim was premature.
Why this matters
The case serves as a reminder that timing is critical in employment claims. If you are considering a constructive dismissal claim, ensure you present any breach of contract claim after your employment has ended. It also shows that age discrimination claims require solid evidence of less favourable treatment compared to a real comparator, not just a feeling of being treated unfairly.
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