Secretary of State for Trade and Industry v Rutherford and Another; Same v Bentley: EAT 2 Oct 2003

The claimants sought to challenge the legislation which removed their employment rights upon attaining the age of 65, arguing that this was discriminatory against men. The Secretary of State appealed the tribunal’s decision.
Held: The tribunal had selected the wrong set of comparators. In cases where the issue related to the entitlement to redundancy payments and unfair dismissal, the proper pool was the entire work force. Though the question no longer arose strictly the court considered obiter whether any such discrimination would be objectively justified. It would have found such a justification. The government would have a margin of appreciation in setting such rules, and the tribunal had failed to take account of the consultation process.


Wall J, Ezekiel, Springer


Times 08-Oct-2003, Gazette 06-Nov-2003


Employment Rights Act 1996 109(1)(b) 156(1)(b)


England and Wales


AppliedRegina 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 . .
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 . .
AppliedSeymour-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 . .
CitedManchester University v Jones 1993
The court prescribed a broad and expansive concept of the pool of comparators in discrimination cases. . .
Lists of cited by and citing cases may be incomplete.


Updated: 11 May 2022; Ref: scu.186635