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Issue 75 (December 2002)

Contents

Help for the aged
Case of Kells illuminates scope of law
Tribunal compensation limits go up
Manner of dismissal compensation
Court of Appeal sets out remedies
On the horizon: Employment Act 2002
Industrial inaction  

Help for the aged

Rutherford v Town Circle (t/a Harvest) (in liquidation) and Secretary of State for Trade and Industry (No.2)
Bentley v Secretary of State for Trade and Industry [2002] IRLR 768 Employment Tribunal

Gidella and others v Wandsworth Borough Council and another (EAT Unreported 19.9.02)

Mr Rutherford's stoical challenge to ageism through sex discrimination legislation, is as persistent as the ageing process itself Broadly the argument goes that the retirement age discriminates indirectly against men. At the normal retirement age, or 65, protection from unfair dismissal is lost, as is the right to a redundancy payment and that disproportionately impacts to the detriment of considerably more men than women, since men are more likely than women to be economically active beyond retirement age.

We previously reported Mr Rutherford's first case (LELR 64, November 2001) Town Circle (t/a Harvest) v Rutherford when he succeeded in the Employment Tribunal only to be knocked back by the Employment Appeal Tribunal. The EAT was not satisfied that the statistics demonstrated the disparate impact needed to found an indirect discrimination claim, nor were they convinced by the Tribunal's approach to objective justification - which can provide a defence to what would otherwise be unlawful discrimination. So the case was remitted to the ET.

Back in the Tribunal Rutherford v Town Circle and Secretary of State for Trade and Industry (No.2) joined with the Bentley case, the Tribunal has again found in favour of the Applicants. On the statistics the Tribunal was satisfied that disparate impact was established by looking at the pool of people working, actively seeking or wanting to work, by looking at the workforce figures.

On objective justification, the Tribunal did not accept the Secretary of State's arguments for the limitation on the right to claim unfair dismissal or redundancy pay for the over 65s as it was tainted by discrimination because of its roots in the equalisation of pension ages. The case is being appealed to the EAT.

A month after Rutherford (No.2) in the ET, the EAT failed to endorse a different Tribunal's finding on the same point, in the Gidella case. Again they doubted the Tribunal's analysis of the statistics. The EAT did not consider there was an 'obvious' disparate impact between men and women from the retirement age provisions. That being so, an employment tribunal had to undertake an overall analysis of the figures in evidence on the impact of the section before them, before assimilating all the figures to judge whether the apparently neutral provision had a disparate impact on men that could fairly have been described as considerable or substantial. The tribunal had not undertaken that task, and the case was remitted back to the tribunal for that analysis to take place.

So the position remains uncertain for now. Confusion reigns. Claims for both men and women should be lodged protectively and stayed pending finality on the issue. The government is committed by the Employment Framework Directive to legislate in this area by 2006, and may wish to do so sooner in the light of the pensions problem and the ageing UK population. But whether it will be possible to ensure flexibility in retirement for those that want to work beyond the age of 65 without jeopardising current pensionable ages remains to be seen.