Rutherford saga

This has been a legal saga. Unanimously (by 5:0), the House of Lords upheld the Court of Appeal and the Employment Appeal Tribunal rulings dismissing the claims of Mr Rutherford and Mr Bentley ([2006] UKHL 19). To recap, in 1998, Rutherford was made redundant at the age of 67 by Harvest Town Circle, which then went into insolvent liquidation a few years later. In 2001, Bentley's employers Bodmer Elem became insolvent and he too was dismissed for redundancy at the age of 73. They were both too old under our current laws to claim unfair dismissal or redundancy payments and thus commenced a lengthy process of litigation which has involved two tribunal hearings, two EAT hearings and a hearing before each of the Court of Appeal and House of Lords. The claims have been largely funded by the public purse as, with both employers being insolvent, the baton passed to the Secretary of State for the DTI. Rutherford stood to gain about £5,400 and Bentley just under £1,500.

Since the obvious claim of age discrimination was not available to the litigants, they proceeded to develop an ingenious argument using the sex discrimination law. Their allegation was that laws which limited unfair dismissal and redundancy payments rights to the under-65s were unlawful because they impacted more on men than women because more men than women chose to remain in employment beyond the age of 65. Both men succeeded before their respective tribunals, but have failed to persuade any of the subsequent courts.

No sex discrimination

The House is unanimous in its decision, but the judgments follow very different routes, with three of their lordships delivering judgments that evidently range rather wider than the arguments put, but which are extremely useful for their focus on what actually amounts to unlawful discrimination at a time where we are badly in need of some clear thinking on an area of law that is threatening to become quite murky.

The judgments follow two different patterns. Lord Walker, with Lord Nicholls agreeing, rests his decision on the statistics (as did the Court of Appeal) and finds no disparate impact. He quickly disposes of the correct pool argument by pointing out that since the legislation applies to everyone who is employed, there is no point in reducing the pool. He then focuses on the advantaged/

disadvantaged debate and points out that we should usually look at the proportions of both the advantaged and disadvantaged as percentages of the whole pool. After some careful analysis of the figures, he reduces them to an algebraic formula (AM/PM% v DM/PM% '“ where A stands for 'advantaged', D for 'disadvantaged', M for 'male employee', and P for the whole 'pool'), endearingly commenting that this might be helpful to some. He specifically disposes of the appellants' argument that the Burden of Proof Directive prohibits a comparison of the percentages of the advantaged, approving Lord Justice Mummery's comment that EC jurisprudence does not prescribe a methodology for determining whether or not there is indirect discrimination.

Gender-related disadvantage

The other three judgments are each broader in scope and each concerned with what amounts to unlawful discrimination in principle. They merit careful reading. Lord Scott reminds us that for unlawful sex discrimination to occur there must be a disadvantage that is gender-related, and there is no sensible way in which this can be said to be true of what is essentially a problem of age discrimination, as he says: 'Age discrimination cannot be passed off as sex discrimination on the ground that more men continue working after 65 than women.'

Lord Rodger (while agreeing that there is no disparate impact), in fact takes the view that statistics are not particularly relevant as the case does not demonstrate any breach of the equal pay principle of Art 141 EC: both men and women under the age of 65 have access to the same 'pay' (ie, redundancy and unfair dismissal compensation) and neither men nor women over 65 do. His judgment is a classic statement of the reach of Art 141.

Baroness Hale also concentrates on what is meant by indirect discrimination. In a short judgement in which she nevertheless cites the founding US case (Grigg v Duke Power [1989} 1 SCR 143), the seminal Canadian case (Andrews v British Columbia 401 US 424) and Professor Sandy Fredman (Discrimination Law, Clarendon Press, 2002, p 115), she grapples with the essential question that should have been at the heart of this case: what makes a disparate impact discriminatory? Or put in the terms of the case: does the statutory bar on unfair dismissal and redundancy payments for the over 65s amount to discrimination against men just because more of them work after that age? Her short answer is that it does not. Citing Professor Fredman, Baroness Hale finds that there is no 'exclusionary barrier' against men and therefore no discrimination at all.

Conclusion

These three judgments, short though they are, remind us that sometimes it is really important to go back to first principles and ask some basic common sense questions, especially in the field of discrimination law

Sue Ashtiany is a partner and head of employment at Nabarro Nathanson

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