Rutherford and Another v Secretary of State for Trade and Industry, Court of Appeal, 3 September 2004

Age discrimination overruled:Mr Rutherford was dismissed at the age of 67, and Mr Bentley at 73. Both claimed redundancy pay, but Rutherford also claimed unfair dismissal. The tribunal held that the upper age limit of 65 for bringing such claims was indirectly discriminatory against men, on the basis that more men than women remained in work beyond the age of 65, and so were more likely to be disadvantaged by the age limit.This decision was overturned by the Employment Appeals Tribunal (EAT) because the tribunal had not used adequate statistics in reaching its conclusion. A second tribunal held that the age limit was indirectly discriminatory. But this was also overturned by the EAT, which held that the tribunal had wrongly defined the comparison pool. According to the EAT, the correct pool was the entire workforce between the ages of 16 and 79, from which a comparison should be made between the number of men and women who were not excluded by the age limit. Based on this, the difference was so slight it did not amount to an adverse impact on men.

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