Secretary of State for Trade and Industry v Rutherford (House of Lords) – 3 May 2006


The House of Lords has ruled that the Employment Rights Act 1996 (ERA), section 109 and 156, which imposed an upper age limit of 65 for claims for compensation for unfair dismissal and redundancy pay, did not have an adverse impact on a substantially higher proportion of men than women and therefore did not constitute indirect discrimination on the ground of sex.

Background

Rutherford and others (R) appealed against the Court of Appeal decision that the ERA sections 109 and 156 did not constitute indirect discrimination on the ground of sex.

R were two men dismissed from their employment when they were over 65 years of age which was the default age limit for access to compensation for unfair dismissal and redundancy pay under the ERA. R’s employers did not have a normal retiring age and so the default limit applied.

The Stratford Employment Tribunal ruled in R’s favour in October 2003 but subsequent appeals to the Employment Appeal Tribunal and the Court of Appeal reversed the first instance findings.

The EAT, the Court of Appeal and the House of Lords upheld the government’s contention that the comparator pool relied on by the claimant was too narrow.  Instead the whole workforce should be used and, on this basis, there had been no discrimination.

Decision

Appeals dismissed.

Comment

As the age discrimination laws awere not yet in place R was compelled to argue on the ground of sex discrimination.  These laws came into force from 1 October 2006.