The House of Lords has, today, dismissed Mr Rutherford's appeal in Rutherford v DTI (previously Harvest Town Circle).
Mr Rutherford was over 65. He wanted to claim unfair dismissal, but was prevented by ERA 1996, s109 (the upper qualifying age). He argued that the upper qualifying age had an adverse impact on a higher proportion of men than women, as more men wanted to work beyond 65, and was therefore indirectly discriminatory and contrary to EU Article 141.
In five different speeches, the Lords held that Mr Rutherford had used the wrong statistics, and that the statistics he had produced did not support a finding of adverse impact. As Lord Walker acknowledged, the five diferent opinions do not yield an obvious legal principle to enable an easy summary of the case.
The appeal was dismissed, and the upper qualifying age is confirmed to be lawful. Hundreds of claims brought by the over-65s, all stayed by tribunals, will now be dismissed.
Just as a note, from October 2006 (when age discrimination laws come into force), the upper qualifying age disappears, and those over retirement age will be free to claim unfair dismissal.