Case round-up by Eversheds 020 7919 4500
Secretary of state for trade and industry v Rutherford and Others, EAT,
2 October 2003
Rutherford and Bentley brought claims arguing that the statutory age limit
of 65 for claiming unfair dismissal and/or a redundancy payment was indirectly
discriminatory against men.
Both men’s claims succeeded but were overturned by the EAT and remitted for
a re-hearing on the basis that the statistics relied upon by the tribunal were
A second tribunal upheld the claims on the basis that (i) with reference to
a pool of over 65s who were economically active, there was a disparate impact;
and (ii) the indirect discrimination could not be justified.
The secretary of state appealed successfully. The correct pool was the
entire workforce and not only those over 65 who were economically active. If
the tribunal had chosen the correct pool, it would have found no disparate
impact on men.
The tribunal had also been wrong to find that the age limits were tainted
with discrimination purely on the basis they were inextricably linked to the
state retirement age. The setting of the age limits constituted reasonable
policy objectives that reflected legitimate aims of social policy.
The EAT noted this was really an age discrimination case and that the
successful arguments in defending these sex discrimination claims would be
unlikely to succeed in an age discrimination claim. Age discrimination
legislation will be introduced in the UK in 2006.
Homeworking: a practice, not a contractual entitlement
France v Westminster City Council, EAT, 9 May 2003
France’s duties as a conference organiser involved organising case
conferences and taking minutes. In 1998, France informally agreed with her
manager that when attending external conferences, she could go straight to and
from the venue from home rather than returning to the office. This arrangement
gradually developed and France began to work from home occasionally to write up
In November 2000, France was informed by her manager’s replacement that the
practice of occasionally working from home must stop. France resigned, claiming
constructive unfair dismissal.
The tribunal held that the homeworking arrangement was not a term of her
contract but an informal arrangement. All other terms and conditions, including
amendments, were in writing. The homeworking arrangement did not therefore
constitute a contractual term. Accordingly, there was no breach of the
employee’s contract and no valid claim for constructive dismissal.
France appealed unsuccessfully. The EAT held that the tribunal was entitled
to reach its conclusion. The arrangement was a matter of practice and usage
only designed to assist in travelling to conferences. The council had a
home/teleworking policy. At no stage had France sought to make any agreement under
this policy. The fact there was such a policy was almost conclusive against