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Rutherford - Upper Qualifying Age

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(Thanks to Paul Troop, junior Counsel for Messrs Rutherford & Bentley, for sending me the summary below)

The EAT has handed down its decision in Secretary of State v Rutherford & Bentley (previously Rutherford v Harvest Town Circle).

It has overturned the ET's decision, and found that the upper qualifying age for unfair dismissal and redundancy does not offend Article 119. Thus the rule remains that employees over normal retirement age cannot claim unfair dismissal or statutory redundancy payments.

The EAT declined to remit the case back to a tribunal and said it was the end of the road for the litigation (subject to any appeal to the Court of Appeal).

I have not read (or seen) the transcript. Paul Troop's summary is reproduced below.

Secretary of State for Trade and Industry v (1) Rutherford (2) Bentley

Mr Justice Wall, 2 October 2003

The EAT has today allowed the Secretary of State's appeal against the finding of the Stratford Employment Tribunal that the provisions of the Employment Rights Act 1996 that prevent employees over the age of 65 claiming either unfair dismissal or redundancy (sections 109(1)(b), 156(1)(b), 119(4) and 162(4)) should be disapplied as being indirectly discriminatory on the grounds of sex contrary to Art 141 of the European Treaty.

The SoS was successful in arguing that the Tribunal's decision in relation to both disparate impact and objective justification was wrong. The judgement runs to over 100 pages.

On the issue of disparate impact, the EAT held that the Tribunal selected the wrong pool for comparison, and even if the pool selected was the correct one, its rejection of the pool proposed by the SoS without any proper form or reasoned analysis was an error of law sufficient to vitiate its decision.

The EAT took the view that the correct pool to be examined is the entire workforce. To deal with any particular segment of it on the basis that it represents those "for whom retirement has some real meaning" is to introduce a subjective element which was capable of being expanded or reduced without the application of any measurable criteria. The EAT stated that this does not mean that it would be wrong, in appropriate cases, to consider the disadvantaged group. The EAT held that the wider pool shows clearly and unequivocally no disparate impact.

On the issue of justification for the provisions, the EAT found that the Tribunal was wrong to decide that the default provisions were inextricably linked to the State retirement age. The EAT accepted that the policy arguments advanced by the SoS constituted reasonable policy objectives that reflected legitimate aims of the State's social policy. The EAT held that the policy aims were not related to any discrimination based on sex and were not "tainted with sex discrimination" as had been found by the Tribunal. The EAT added that the Tribunal failed to give any weight to the consultation process currently under way in relation to age discrimination and to allow the government a reasonable margin of appreciation when striking the balance between the need to legislate and the need to ensure that proper processes have been gone through before legislation is placed before Parliament.

The EAT saw no point in remitting the case to another Tribunal for further consideration. The order of the Tribunal was set aside and the claims of Mr Rutherford and Mr Bentley were dismissed.

The EAT also stated "We do not, of course, criticise either Mr Rutherford or Mr Bentley for bringing these applications. By pointing up the difficulties, they and their lawyers have performed a public service, of which we hope the government will take note. But that said, we see no purpose in there being a Rutherford II. Subject, of course, to the Court of Appeal taking a different view, it is our judgement that this litigation should stop now."