Previous Article Next Article Continuing our regular series spelling out the implications of importantcases which have been heard recently in the appeal courts. Sue Nickson looks atthe issuesToo old to claim Harvest Town Circle v Rutherford 2001 EAT 18 July 2001 Rutherford was 67 years old when he was told he was being made redundantfrom his position as a production controller with Harvest Town Circle. Thecompany did not operate a normal retiring age higher than 65. He presented aclaim of unfair dismissal and redundancy on the grounds that there was no trueredundancy situation. In order to succeed in his claim, it would be necessary for him to establishthat the provisions of the Employment Rights Act 1996 (ERA) that preventedemployees over normal retirement age claiming unfair dismissal or redundancywere in breach of Article 141 of the European Union. He claimed that as Article 141 required the principle of equal pay to beapplied between men and women and the fact that more men worked beyond the ageof 65, the upper age limit on claims was indirectly discriminatory. Statisticswere produced to show that in the five years up to the date of dismissal, therewas a considerably higher percentage of men over 65 being economically active.The tribunal, therefore, found that the provisions of the ERA were indirectlydiscriminatory on grounds of sex, unless it could be objectively justified byother factors. The Employment Appeal Tribunal remitted the case back for a rehearing. Itwas found that the statistics relied upon by the EAT were inadequate. Theycontained all those who had been at, or available for work in a two-week periodwhen over the age of 65. This could include directors, partners and others whowould not in any event be affected by unfair dismissal and redundancy law.Equally, the statistics did not take into consideration those who weredismissed at the age of 65 or resigned to avoid dismissal. Secondly, it held that it was unreasonable for the tribunal to expect asmall company like Harvest Town Circle to be able to adequately put forward theobjective justification points available to support important primarylegislation. The tribunal should in have invited the Secretary of State toconsider arguments to put forward by way of objective justification. The upper age limit on claims, therefore, stays intact, however whether itwill continue to do so is far from clear. Certainly, while allowing thisappeal, the EAT has not closed the door on further possible challenges. As the present government is committed to introducing age discriminationlegislation, it appears that this will be a subject before further appealcourts in the near future. All workers have rights to holiday R v Secretary of State for Trade and Industry ex parte Bectu ECJ 26.6.01Case C-173/99) Bectu (the Broadcasting, Entertainment, Cinematographic and Theatre Union)was aware that many of its members were on short-term contracts with various employers,and so did not qualify for paid annual leave under the Working TimeRegulations. The union issued judicial review proceedings, claiming the 13-weekqualifying period for annual leave under the regulations was unlawful, as itdid not adequately implement the provisions of the EU Working Time Directive.The High Court referred the matter to the European Court of Justice. The ECJ found that the purpose of the directive was to lay down minimumrequirements to improve the living and working conditions of workers. Theprovision for paid leave was not a requirement which member states were allowedto derogate from. It followed, therefore, that the entitlement of every workerto this must be regarded as a particularly important principle of community sociallaw. Therefore, while regulations may be imposed as to how holidays will betaken, it would be unlawful for regulations to specify any that may prevent aworker from having the right in the first place. Draft regulations were issued by the Government the day after the judgementwas made, and included a shorter one-month consultation period in order to giveeffect to this ruling as soon as possible. When in force, it will mean thatworkers will have the right to accrue holidays from their first day in work,regardless of the length of the contract. Actions speak louder than words Bradley v Greater Manchester Fire and Civil Defence Authority IRLB 668July 2001 Bradley had suffered neck problems for some time and this had resulted invarious adjustments being made to her duties. She went off work following theseadjustments, and a subsequent medical examination found that as no furthermodifications could be made, she should be recommended for ill-healthretirement. She claimed disability discrimination. The tribunal found she was disabled and that her dismissal amounted to lessfavourable treatment. But it also found that the employers had shown materialand substantial justification. On appeal, the decision was upheld that the employers had shownjustification. The argument that they could not later rely upon the statutorydefence of justification if they had not raised it before, was also rejected.The assessment was objective, and the EAT found the steps the employers hadtaken should be assessed as such. The EAT preferred the view expressed in British Gas Services Ltd v McCaul2001 that actions, not thoughts, are of importance. There had previously beenuncertainty, as the EAT in Quinn v Schwarzkopf 2001 held an employer could notrely upon provisions in the Disability Discrimination Act 1995 if he had notconsciously considered those provisions. Unambiguous “sex” Advocate General for Scotland v MacDonald 1.6.01 Court of Session MacDonald felt compelled to resign from the Armed Forces after beingquestioned about his private life and revealing that he was homosexual. Heclaimed sex discrimination. The tribunal took the decision to hold, contrary to previous authority, that”sex” in the Sex Discrimination Act (SDA) was ambiguous. Taking intoaccount the European Convention on Human Rights, it should be interpreted asreferring to discrimination on grounds of orientation as well as gender. The Court of Session has reversed this, taking us back to the establishedposition that the SDA covers only gender discrimination and that it is for thegovernment to extend discrimination legislation to orientation. Sue Nickson is a partner and national head of employment law at HammondSuddards Edge On appealOn 7 Aug 2001 in Personnel Today Comments are closed. Related posts:No related photos.