Harvest Town Circle Ltd v Rutherford 2001 IRLR 599
The Employment Appeal Tribunal decision of Harvest Town Circle Ltd v Rutherford concems the age limit of 65 in unfair dismissal and redundancy cases.
Mr Rutherford was compulsorily retired at the age of 67, and objected to the rule which prevented him from pursuing a Tribunal claim for unfair dismissal and redundancy by reason of his age. Given that the Framework Directive on age discrimination is still many years yet from implementation, he pursued his case by claiming indirect sex discrimination. His argument was that the cut-off age of 65 disadvantaged more men than women in a way that could not be justified and so breached the Sex Discrimination Act.
Mr Rutherford succeeded before the Employment Tribunal, who relied on statistics which showed that 8% of men over the age of 65 were economically active in the sense of being in work or available for work, compared to 3% or women. The Company was able to produce no evidence to justify the statutory provision.
This decision was overturned by the Employment Appeal Tribunal, and the case has been remitted to the Tribunal for a rehearing. The basis of the EAT's decision was firstly that the Tribunal were mistaken in not insisting that the Secretary of State be joined in the action to provide evidence on the issue of justification. Secondly, the EAT objected to the statistics relied on by the Tribunal.
According to the EAT, the statistics could not be appropriate since they involved including in the pool such groups as the 80 to 90 year olds who were likely to have no intention of looking for work and therefore could not be regarded as being affected one way or another by the 65 cut off point. Further, they included, for example, the seIf-employed who were not affected by the' unfair dismissal laws at all. Also, by ignoring the fact that women tend to live longer, the statistics were skewed so as to reduce the percentage of women affected.
Instead, the EAT formulated the statistics required as being those relating to men and women "who, on arriving at age 65, would have wished, and would have been physically or mentally able, to continue in employment properly so called who either were then dismissed or made redundant by reason of the relative freedom which the legislation conferred upon their employer or who were so fearful of that freedom being exercised against them that they accepted retirement." Quite how Mr Rutherford is expected to find such statistics is not explained. Indeed, such a rigorous formulation of the requirement is perhaps more explained by the EAT's obvious concern in this case at the possibility of the Government legislation on age limits being declared unlawful.
The EAT are however careful to make it clear that the Tribunals may require different statistics in different types of cases: there may well be cases where it will be sufficient to rely on numbers and not proportions or statistics, and others where more than one type of comparison will be required. This will be for the Tribunal to determine. Certainly it is very unlikely that the rigid statistical evidence required in this case will be required of Applicants in, for example, part time workers cases, where the adverse impact on women can almost be established by anecdotal means without the need for statistics at all. This is all the more given the amendments to the Sex Discrimination Act required by the new Burden of Proof Regulations 2001 which tend if anything to point away from a rigid reliance on statistics.