Secretary 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 people affected by the provisions, and provisions were on their face non-dicriminatory. Was indirect discrimination established? ‘article 141 does not . . . guarantee that a man over 65 will have the same (higher) level of pay as a woman under 65 doing equal work. Parliament has decided that a younger woman, who has worked for her employer for more than a year, should have rights which a man or woman over 65 does not have. The man over 65 can claim no more than to receive pay equal to the pay of a woman over 65 for equal work. In the usual jargon, the woman over 65 is the appropriate comparator. ‘ The House had to discuss two issues, the identification of the appropriate pool for comparisons, and the choice between the advantage led and the disadvantage led approaches. In this case the use of more than one pool had led to confusion. Advantage-led claculations were to be preferred: ‘I do not express the view that some element of disadvantage-led analysis may not be appropriate in some cases. But it must be recognised that there is a difficulty here: the more extreme the majority of the advantaged in both pools, the more difficult it is, with any intellectual consistency, to pay much attention to the result of a disadvantage-led approach. ‘


Lord Nicholls of Birkenhead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond


Times 08-May-2006, [2006] UKHL 19, [2006] IRLR 551, [2006] ICR 785, [2006] 2 WLR 772




Employment Rights Act 1996 109 156, Burden of Proof Directive (97/80/EC)


England and Wales


Appeal fromRutherford 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.
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 . .
CitedGriggs v Duke Power Company 1971
(US) The court examined the arguments relating to indirect discrimination. . .
CitedJ P Jenkins v Kingsgate (Clothing Productions) Ltd ECJ 31-Mar-1981
ECJ The fact that work paid at time rates is remunerated at an hourly rate which varies according to the number of hours worked per week does not offend against the principle of equal pay laid down in article 119 . .
CitedNikoloudi v Organismos Tilepikinonion Ellados AE, (Social Policy) ECJ 10-Mar-2005
Europa Social policy – Male and female workers – Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) – Directive 75/117/EEC – Equal pay – Directive . .
CitedIngrid Rinner-Kuehn v Fww Spezial-Gebaudereinigung Gmbh and Co. Kg ECJ 13-Jul-1989
The Court heard a complaint about a German statute providing that an employer need not pay sick pay to a part-time worker. In at least seven member states part-time workers were predominantly women (the percentages ranging from 89% in the Federal . .
CitedEnderby v Frenchay Health Authority and Another ECJ 27-Oct-1993
Discrimination – Shifting Burden of Proof
(Preliminary Ruling) A woman was employed as a speech therapist by the health authority. She complained of sex discrimination saying that at her level of seniority within the NHS, members of her profession which was overwhelmingly a female . .
CitedPerera v Civil Service Commission (No 2) EAT 1982
The tribunal considered the method of selection of the pool on a claim for indirect discrimination. In this case the claimant alleged that an age test applied on his application would effectively limit the proportion of coloured who would meet the . .
CitedPerera v Civil Service Commission (No 2) CA 1983
Upheld on Appeal. . .
CitedAllonby v Accrington and Rossendale College for Education and Employment ECJ 13-Jan-2004
ECJ Principle of equal pay for men and women – Direct effect – Meaning of worker – Self-employed female lecturer undertaking work presumed to be of equal value to that which is undertaken in the same college by . .
CitedJones v University of Manchester CA 10-Mar-1993
A claim for sex discrimination based on an age requirement was wrongly based. The proportion of mature graduates was irrelevant in the appropriate pool. The Court cautioned tribunals to avoid placing artificial limitations on the scope of the pool . .
CitedLondon Underground Limited v Edwards CA 21-May-1998
A new driver roster imposing shift working timetables discriminated against women since significantly less in proportion of women could meet the new arrangements – indirect discrimination . .
CitedLondon Underground Limited v Edwards (2) CA 21-May-1998
New rosters for underground train drivers were indirectly discriminatory because all the men could comply with them but not all the women could do so: it was a ‘striking fact’ that not a single man was disadvantaged despite the overwhelming . .
CitedBarry v Midland Bank Plc HL 22-Jul-1999
The defendant implemented a voluntary retirement scheme under which benefits were calculated according to the period of service of the employee. The plaintiff claimed that the scheme discriminated against workers who had taken career breaks, and . .
CitedBarry v Midland Bank Plc CA 18-Dec-1997
No sex discrimination was involved in company’s retirement benefits scheme even though it was affected by differences for part time workers, and even though more women worked part time . .
CitedAndrews v British Columbia 1989
(Canada) McIntyre J defined discrimination: ‘discrimination may be described as a distinction, whether intentional or not but based on grounds relating to the personal characteristics of the individual or group, which has the effect of imposing . .
CitedBarry v Midland Bank Plc CA 18-Dec-1997
No sex discrimination was involved in company’s retirement benefits scheme even though it was affected by differences for part time workers, and even though more women worked part time . .

Cited by:

CitedEweida v British Airways Plc CA 12-Feb-2010
The court was asked whether, by adopting a staff dress code which forbade the wearing of visible neck adornment and so prevented the appellant, a Christian, from wearing with her uniform a small, visible cross, British Airways (BA) indirectly . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 06 July 2022; Ref: scu.241417