Rutherford and Another v Secretary of State for Trade and Industry: CA 3 Sep 2004

The claimants alleged that the legislation governing retirement was indirectly discriminatory against men. Though the right not to be unfairly dismissed maximum age limit was the same for men and for women, that did not apply on a redundancy.
Held: A great deal depended upon the method of selection of the pool of workers, should it include only those workers affected by the point. The primary focus should be on the proportions of men and women who can comply with the requirement of the disputed rule. The ET should have taken the statistics for the entire workforce, to which the unfair dismissal and redundancy pay requirement of being under 65 applied. In this light there was no substantial difference in treatment.


Lord Justice Mummery, Lord Justice Potter Lord Justice Scott Baker


[2004] EWCA Civ 1186, Times 04-Nov-2004, [2005] ICR 119




Employment Rights Act 1996 94(1)


England and Wales


CitedRegina v Secretary of State Employment, ex parte Equal Opportunities Commission and Another HL 4-Mar-1994
The Equal Opportunities Commission sought judicial review to test whether English employment law was in breach of EC law where threshold conditionsions for part time workers to make unfair dismissal and redundancy law claims were discriminatory.
CitedHarvest Town Circle Ltd v Rutherford EAT 10-Jul-2001
In a case alleging indirect sex discrimination in the differing rules denying entitlement to redundancy payments for men over 65, the tribunal should be ready to look at a wide range of statistics. The test is whether the rule imposed some condition . .
CitedM H Marshall v Southampton And South West Hampshire Area Health Authority (Teaching) ECJ 26-Feb-1986
ECJ The court considered the measure of compensation in a successful claim for sex discrimination arising from the health authority’s provision of an earlier compulsory retirement age for women compared with that . .
CitedSeymour-Smith and Perez; Regina v Secretary of State for Employment, Ex Parte Seymour-Smith and Another ECJ 9-Feb-1999
Awards made by an industrial tribunal for unfair dismissal are equivalent to pay for equal pay purposes. A system which produced a differential effect between sexes was not indirect discrimination unless the difference in treatment between men and . .
CitedRegina v Secretary of State For Employment Ex Parte Seymour-Smith and Another (No 2) HL 17-Feb-2000
Although fewer men were affected by the two year qualifying period before becoming entitled not to be dismissed unfairly, the difference was objectively justified by the need to encourage employers to take staff on, and was not directly derived from . .

Cited by:

Appeal fromSecretary of State for Trade and Industry v Rutherford and others HL 3-May-2006
The claimant sought to establish that as a male employee, he had suffered sex discrimination in that he lost rights to redundancy pay after the age of retirement where a woman might not.
Held: The appeal was dismised. There were very few . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 10 July 2022; Ref: scu.200684