Upper Qualifying Age: Rutherford v TownCircle (trading as Harvest)

Readers will recall Rutherford v Harvest Town Circle (see bulletin 18/7/01), in which the Employment Appeal Tribunal set out the legal test for whether the unfair dismissal / redundancy upper qualifying ages were contrary to EU Art 141.

Yesterday, the Stratford employment tribunal sent out its reserved decision dealing with the statistics on whether the upper qualifying ages had a disparate impact on women in the workplace and, if so, whether the government could justify the upper qualifying age on grounds of social policy. This was in the Rutherford case as well as the conjoined appeal of Bently v DTI - both cases dealing with applicants over 65 at the date of dismissal.

The tribunal held, in a very thorough analysis of the statistics and of the policy behind the Act, that the upper qualifying ages did have a disparate impact, and that they could not be justified by the government.

Accordingly the upper qualifying ages were disapplied and the applications for unfair dismissal and redundancy payments were allowed to proceed.

Implications: Subject to appeal, it now seems clear that the upper qualifying ages are unlawful and that people over 65 will be entitled to claim unfair dismissal and redundancy payments.

Technically, each applicant would need to prove the statistical disparity. But in practice this should be straightforward - the Stratford tribunal has annexed the relevant statistics to its decision and they can be produced as hearsay evidence in any tribunal.

Upper Qualifying Age: Rutherford v TownCircle (trading as Harvest)

Readers will recall Rutherford v Harvest Town Circle (see bulletin 18/7/01), in which the Employment Appeal Tribunal set out the legal test for whether the unfair dismissal / redundancy upper qualifying ages were contrary to EU Art 141.

Yesterday, the Stratford employment tribunal sent out its reserved decision dealing with the statistics on whether the upper qualifying ages had a disparate impact on women in the workplace and, if so, whether the government could justify the upper qualifying age on grounds of social policy. This was in the Rutherford case as well as the conjoined appeal of Bently v DTI - both cases dealing with applicants over 65 at the date of dismissal.

The tribunal held, in a very thorough analysis of the statistics and of the policy behind the Act, that the upper qualifying ages did have a disparate impact, and that they could not be justified by the government.

Accordingly the upper qualifying ages were disapplied and the applications for unfair dismissal and redundancy payments were allowed to proceed.

Implications: Subject to appeal, it now seems clear that the upper qualifying ages are unlawful and that people over 65 will be entitled to claim unfair dismissal and redundancy payments.

Technically, each applicant would need to prove the statistical disparity. But in practice this should be straightforward - the Stratford tribunal has annexed the relevant statistics to its decision and they can be produced as hearsay evidence in any tribunal.

Better Regulation TaskForce Report

CONTENTS:
1. Better Regulation TaskForce Reports
2. What are your burning questions?

1. Better Regulation TaskForce Report

The government has announced it intends to implement a number of recommendations of the Better Regulation TaskForce Report (see bulletin 16/5/02). Note that this is completely separate from Janet Gaymer's Employment TaskForce Report, which was published last week.

The government intends to:
• pilot free or subsidised employment law advice visits to
employers of less than 50 employees;
• run a number of pilot schemes giving a shared HR resource to
small firms;
• most significantly, consult on how harmonising start dates for domestic regulations
could best work in practice
The third of those will, if implemented, be an immense relief to employers and lawyers alike, who will only have to grapple with one or two commencement dates a year.


2. What are your Burning Questions?

I am putting together a course for Central Law Training entitled:

'Unfair Dismissal: Your Top 10 Questions Answered'

It would be of great help if people could Email me with one or two (or more!) questions that they would find of interest at such a seminar. If you're willing to give me any ideas, please use this Email.

Aggravated Damages: New EAT Decision

The EAT has held that employees can recover aggravated damages in discrimination claims arising from the unreasonable conduct of the employer after dismissal - in this case, the unreasonable conduct of the employer in the way it conducted its defence in the ET claim.

The case is Zaiwalla & Co v Hodson (EAT, Maurice Kay J., 24/7/02)

Facts
Ms Hodson was a mature law graduate. She obtained a training contract with Zaiwalla & Co. After several months of ongoing sex discrimination, she was dismissed. The tribunal found the reason for her dismissal was the sex discrimination, and awarded her £43,149 compensation (including £7,500 aggravated damages)

The Issue(s)
A number of issues were raised as to the liability decision, all of which were rejected in fairly robust terms.

The important issue on quantum was whether a tribunal was entitled to make an award of aggravated damages in respect of the way that Zaiwalla & Co (who represented themselves) conducted their defence in the employment tribunal claim. Although this issue had been raised previously in Chief Constable of West Yorkshire Police v Vento, the EAT had not found it necessary to determine the point.

The Result
The EAT held that it was proper to award aggravated damages by reference to conduct in the defence of proceedings. Indeed, it was desirable to do so on policy grounds, because otherwise it might result in satellite litigation for victimisation (although query whether this analysis is correct, given the House of Lord's decision in Khan, which was not considered by the EAT).

The EAT rejected the argument that there are better ways of dealing with the problem of unreasonable litigants - for example, by an order for costs to reflect unreasonableness.

However, the EAT made it clear that this was an almost unique case on the facts. It held:

"28. We are sensitive to the possibility that overenthusiastic litigants and litigants in employment tribunals may be tempted to read our conclusions in a way which would give the green light to claims for aggravated damages in respect of alleged misconduct in the defence of proceedings almost as a matter of routine. They would be wrong to do so. The findings of fact in the present case...were exceptional in their assessment of the litigation misconduct. We expect that cases attracting awards of aggravated damages for such behaviour will be few and far between. It saddens us that this exceptional case concerned the behaviour of a firm of solicitors."

[Employment Law List] A Request

This is an automatic message, sent to the older members on my mailing list.

For the last year or so, I have been asking all new subscribers to complete a short form identifying themselves (basically, name and firm) when they sign up. Because you joined before I started this system, I don't know who you are.

Would you mind completing a (very) short form identifying yourself? Just click on the link at the bottom of any of my normal bulletins (not this one), and you will be taken to a web page to complete your details.

Sorry for disturbing you, but I hope you won't mind helping me out. It simply means that I have a better idea of who receives my Email bulletins. As always, I promise that I will never sell or distribute the details of anybody who is on the mailing list.

Equality Bill - Consultation

First, a note of apology. For some reason I am looking into, about 10% of the subscribers to this bulletin suddenly stopped receiving them last month (although from my end they still appear to be on the list). If your colleagues are not getting these Emails, I am looking into it.

Second (and of more general interest!), the Cambridge Centre for Public Law has published a draft Equality Bill which went out to consultation earlier this week. The Bill is drafted by Professor Bob Hepple and Lord Lester of Herne Hill and will be introduced by Lord Lester as a Private Member's Bill later this year.

It is an all-encompassing discrimination code, covering discrimination in employment (and other fields) on grounds of sex, race, disability, religion, marital or family status, sexual orientation or gender reassignment, and age.

The Act is 74 pages long but reads like a dream (to those, like me, who dream about employment law!).