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Rutherford v DTI: Court of appeal confirms that Upper Qualifying Age does not contravene EU law

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(Thanks to Paul Troop of Tooks Chambers, junior Counsel for Mr Rutherford, for telling me this decision was out)

At 10.00am the Court of Appeal handed down its judgment in Rutherford v DTI (no. 2) (previously known as Rutherford v Harvest Town Circle). The "ambitious aim of the two test actions is to secure judicial application of long standing statutory limitations on the jurisdiction of the employment tribunal." (judgment, para. 1)

Mr Rutherford, who was 67 when dismissed, claimed the upper qualifying age in ss109 and 156 of the Employment Rights Act (providing that employees cannot claim unfair dismissal or redundancy payments if over normal retirement age - in his case, 65) contravened EU law as it had an adverse effect on more men than women.

The employment tribunal found in his favour. The EAT allowed the employer's case and remitted the point for re-hearing. The tribunal again found in his favour, deciding that the relevant 'pool' of comparators was people in the workforce who could realistically claim to be affected by the upper qualifying age. It assessed this as people aged over 55, ie within 10 years of retirement, and found that far more men than women fell into this group - thus the upper qualifying age had an adverse impact on men. It held that the DTI failed to justify the upper qualifying age on objective grounds, thus the upper qualifying age was unlawful and must be disapplied.

The EAT overturned that decision, holding the upper qualifying age was lawful. The Court of Appeal has, today, agreed.

Mummery LJ, giving the leading judgment, held that the employment tribunal had failed to give effect to the House of Lords' judgment in R v Secretary of State ex p. Seymour-Smith, which provided that the ENTIRE workforce must be used as a pool when determining whether a national provision had an adverse impact on one gender compared with the other.

When using the statistics for the entire workforce, the difference between the proportion of men affected by the upper qualifying age, and the proportion of women, was negligible.

Accordingly, the employment tribunal was wrong to disapply the upper qualifying ages, and the UK limitations on unfair dismissal stand.

As a separate point, the DTI has recently announced that publication of the draft Regulations on Age Discrimination have been delayed until next year, to allow time for additional consultation on whether to maintain mandatory retirement ages.

Rutherford v Harvest Town Circle