On appeal

Continuing our regular series spelling out the implications of important
cases which have been heard recently in the appeal courts. Sue Nickson looks at
the issues

Too old to claim
Harvest Town Circle v Rutherford 2001 EAT 18 July 2001

Rutherford was 67 years old when he was told he was being made redundant
from his position as a production controller with Harvest Town Circle. The
company did not operate a normal retiring age higher than 65. He presented a
claim of unfair dismissal and redundancy on the grounds that there was no true
redundancy situation.

In order to succeed in his claim, it would be necessary for him to establish
that the provisions of the Employment Rights Act 1996 (ERA) that prevented
employees over normal retirement age claiming unfair dismissal or redundancy
were in breach of Article 141 of the European Union.

He claimed that as Article 141 required the principle of equal pay to be
applied between men and women and the fact that more men worked beyond the age
of 65, the upper age limit on claims was indirectly discriminatory. Statistics
were produced to show that in the five years up to the date of dismissal, there
was a considerably higher percentage of men over 65 being economically active.
The tribunal, therefore, found that the provisions of the ERA were indirectly
discriminatory on grounds of sex, unless it could be objectively justified by
other factors.

The Employment Appeal Tribunal remitted the case back for a rehearing. It
was found that the statistics relied upon by the EAT were inadequate. They
contained all those who had been at, or available for work in a two-week period
when over the age of 65. This could include directors, partners and others who
would not in any event be affected by unfair dismissal and redundancy law.
Equally, the statistics did not take into consideration those who were
dismissed at the age of 65 or resigned to avoid dismissal.

Secondly, it held that it was unreasonable for the tribunal to expect a
small company like Harvest Town Circle to be able to adequately put forward the
objective justification points available to support important primary
legislation. The tribunal should in have invited the Secretary of State to
consider arguments to put forward by way of objective justification.

The upper age limit on claims, therefore, stays intact, however whether it
will continue to do so is far from clear. Certainly, while allowing this
appeal, the EAT has not closed the door on further possible challenges.

As the present government is committed to introducing age discrimination
legislation, it appears that this will be a subject before further appeal
courts in the near future.

All workers have rights to holiday
R v Secretary of State for Trade and Industry ex parte Bectu ECJ 26.6.01
Case C-173/99)

Bectu (the Broadcasting, Entertainment, Cinematographic and Theatre Union)
was aware that many of its members were on short-term contracts with various employers,
and so did not qualify for paid annual leave under the Working Time
Regulations. The union issued judicial review proceedings, claiming the 13-week
qualifying period for annual leave under the regulations was unlawful, as it
did not adequately implement the provisions of the EU Working Time Directive.
The High Court referred the matter to the European Court of Justice.

The ECJ found that the purpose of the directive was to lay down minimum
requirements to improve the living and working conditions of workers. The
provision for paid leave was not a requirement which member states were allowed
to derogate from. It followed, therefore, that the entitlement of every worker
to this must be regarded as a particularly important principle of community social
law. Therefore, while regulations may be imposed as to how holidays will be
taken, it would be unlawful for regulations to specify any that may prevent a
worker from having the right in the first place.

Draft regulations were issued by the Government the day after the judgement
was made, and included a shorter one-month consultation period in order to give
effect to this ruling as soon as possible. When in force, it will mean that
workers will have the right to accrue holidays from their first day in work,
regardless of the length of the contract.

Actions speak louder than words
Bradley v Greater Manchester Fire and Civil Defence Authority IRLB 668
July 2001

Bradley had suffered neck problems for some time and this had resulted in
various adjustments being made to her duties. She went off work following these
adjustments, and a subsequent medical examination found that as no further
modifications could be made, she should be recommended for ill-health
retirement. She claimed disability discrimination.

The tribunal found she was disabled and that her dismissal amounted to less
favourable treatment. But it also found that the employers had shown material
and substantial justification.

On appeal, the decision was upheld that the employers had shown
justification. The argument that they could not later rely upon the statutory
defence of justification if they had not raised it before, was also rejected.
The assessment was objective, and the EAT found the steps the employers had
taken should be assessed as such.

The EAT preferred the view expressed in British Gas Services Ltd v McCaul
2001 that actions, not thoughts, are of importance. There had previously been
uncertainty, as the EAT in Quinn v Schwarzkopf 2001 held an employer could not
rely upon provisions in the Disability Discrimination Act 1995 if he had not
consciously considered those provisions.

Unambiguous "sex"
Advocate General for Scotland v MacDonald 1.6.01 Court of Session

MacDonald felt compelled to resign from the Armed Forces after being
questioned about his private life and revealing that he was homosexual. He
claimed sex discrimination.

The tribunal took the decision to hold, contrary to previous authority, that
"sex" in the Sex Discrimination Act (SDA) was ambiguous. Taking into
account the European Convention on Human Rights, it should be interpreted as
referring to discrimination on grounds of orientation as well as gender.

The Court of Session has reversed this, taking us back to the established
position that the SDA covers only gender discrimination and that it is for the
government to extend discrimination legislation to orientation.

Sue Nickson is a partner and national head of employment law at Hammond
Suddards Edge

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