The Government has won its appeal against a tribunal ruling that could have
given hundreds of thousands of older workers new employment rights.
In August, the tribunal gave two pensioners, John Rutherford from Essex and
Samuel Bentley from London, the right to claim unfair dismissal and redundancy
The pair won, under European law, after arguing that they suffered indirect
sexual discrimination because more men than women over 65 continue to work in
But the Department of Trade and Industry (DTI) argued at appeal that it was
incorrect to conclude there was sexual discrimination against men because if
you looked at the workforce as a whole, there was no discrimination by the law.
If Rutherford and Bentley’s claim had been upheld, the case would have had
implications for hundreds of thousands of workers and their employers. Many
other similar cases were put on hold pending the outcome of this case.
Paul Quain, the Charles Russell lawyer who represented Rutherford, said the
pair are considering going to the Court of Appeal and perhaps further.
"This is an extremely important case," he said. "People
working after retirement age are an increasingly significant part of the
But Sam Mercer, director of the Employers Forum on Age (EFA), said that
seeking to abolish upper age limits for unfair dismissal by bringing a sex
discrimination claim is not the best way to improve the situation for older
"[It] is better for both employers and employees to wait until the
upper age limit on unfair dismissal is removed as part of new age laws that are
to be introduced in 2006," she said.
"Employers are planning for these new laws, but cannot be expected to
make fundamental changes to employment policy and practice overnight.
Introducing policies that are well thought through is preferable to the
confusion that case law decisions can cause."
The full decision is available at www.employmentappeals.gov.uk/uploads/EAT1029022252003/index.htm
By Quentin Reade