Rutherford v Secretary of State for Trade and Industry (No 1)
| Jurisdiction | UK Non-devolved |
| Judgment Date | 02 October 2003 |
| Date | 02 October 2003 |
| Court | Employment Appeal Tribunal |
EMPLOYMENT APPEAL TRIBUNAL
Before Mr Justice Wall, Mr I. Ezekiel and Mr S. Springer
Sex discrimination - no discrimination in employment rights age limit
The provisions of the Employment Rights Act 1996, which prohibited applications to employment tribunals by men and women over the age of 65 who wished to claim unfair dismissal or redundancy payments, were not to be disapplied as being contrary to European law for discriminating indirectly against male employees.
The Employment Appeal Tribunal so held when allowing appeals brought by the Secretary of State for Trade and Industry against the decision of the Stratford Employment Tribunal (Chairman Mr S. M. Duncan) in the cases of John Dennis Rutherford and Samuel Bentley, promulgated on September 5, 2002.
Counsel for the applicants were Mr Robin Allen, QC, Ms Rachel Crasnow and Mr Paul Troop
The case was reheard after the remittal on appeal of Harvest Town Circle Ltd v RutherfordICR ((2002) ICR 123).
The applicants were men aged over 65 when their employment came to an end. They brought claims in the employment tribunal for redundancy payments and unfair dismissal. The claims were heard together.
The cases both raised the issue whether sections 109(1)(b) and 156(1)(b) of the 1996 Act, which prohibited applications to employment tribunals by men and women over the age of 65 who wished to claim unfair dismissal or redundancy payments, were to be disapplied as being contrary to European law because they discriminated indirectly against male employees.
The tribunal, treating the issue effectively as a preliminary point, concluded that the upper age default provisions contravened article 141 (formerly 119) of the EC Treaty and were indirectly discriminatory.
Further, they could not be objectively justified by factors unrelated to sex discrimination, and were therefore to be disapplied. The tribunal accordingly held that it had jurisdiction to entertain the applications of both applicants, and made awards.
The instant appeals were brought, not by the former employers, which were insolvent, but by the secretary of state, who was potentially liable in such circumstances, under sections 166 and 167 of the 1996 Act in respect of claims for redundancy payments, and under Part XII of the 1996 Act in relation to any basic award of compensation for unfair dismissal.
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