Age and Sex Equality – House of Lords' Ruling

For several years, attempts have been made on behalf of older employees to persuade the Employment Tribunal that the provisions of the Employment Rights Act 1996 (ERA) which prevent an employee over 65 from claiming compensation for unfair dismissal and/or statutory redundancy pay are sex discriminatory and unlawful.

In the long-running case of Rutherford & another v DTI, the Employment Tribunal originally backed a claim by two pensioners that the upper age limit amounts to indirect sex discrimination because more men than women over the age of 65 continue to work.

Department of Trade and Industry Appeal

Following an appeal by the Department of Trade and Industry, the Employment Appeal Tribunal reversed this decision. Although the original case was supported by extensive statistical analysis, the Employment Appeal Tribunal decided that the Tribunal had selected the wrong pool of workers for comparison when concentrating on a selected age band. A comparison with the workforce as a whole showed that the law as it stands does not have a disparate impact on men compared with women. The Employment Appeal Tribunal also held that the provisions of the Employment Rights Act reflect a legitimate aim of social policy unrelated to discrimination based on sex.

The Court of Appeal upheld the Employment Appeal Tribunal's decision.

Having examined the statistical arguments put forward in the case, the House of Lords has now dismissed a further appeal, confirming that the upper qualifying age is lawful.

This decision is bad news for those with similar claims who were waiting for the outcome of this case. The Employment Equality (Age) Regulations, due to come into force on 1 October 2006, will remove the upper qualifying age for unfair dismissal and redundancy and will give employees the right to request to work beyond the national default retirement age of 65, or any other retirement age set by their employer. The employer will have a duty under the Regulations to consider the request.