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Upper Qualifying Age: Rutherford v TownCircle (trading as Harvest

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Readers will recall Rutherford v Harvest Town Circle (see bulletin 18/7/01), in which the Employment Appeal Tribunal set out the legal test for whether the unfair dismissal / redundancy upper qualifying ages were contrary to EU Art 141.

Yesterday, the Stratford employment tribunal sent out its reserved decision dealing with the statistics on whether the upper qualifying ages had a disparate impact on women in the workplace and, if so, whether the government could justify the upper qualifying age on grounds of social policy. This was in the Rutherford case as well as the conjoined appeal of Bently v DTI - both cases dealing with applicants over 65 at the date of dismissal.

The tribunal held, in a very thorough analysis of the statistics and of the policy behind the Act, that the upper qualifying ages did have a disparate impact, and that they could not be justified by the government.

Accordingly the upper qualifying ages were disapplied and the applications for unfair dismissal and redundancy payments were allowed to proceed.

Implications: Subject to appeal, it now seems clear that the upper qualifying ages are unlawful and that people over 65 will be entitled to claim unfair dismissal and redundancy payments.

Technically, each applicant would need to prove the statistical disparity. But in practice this should be straightforward - the Stratford tribunal has annexed the relevant statistics to its decision and they can be produced as hearsay evidence in any tribunal.