Court of Appeal rejects older workers’ discrimination case

Two men at the centre of a far-reaching fight for the rights of older workers have had their case turned down by the Court of Appeal and are now considering their next move.


John Rutherford, 72, and Samuel Bentley, 76, have been represented on a pro bono basis by a team comprising Charles Russell, the Islington Law Centre, Robin Allen QC of Cloisters and Tooks Court in a discrimination case that could see thousands of people working beyond retirement age gain employment rights for the first time.

Rutherford and Bentley both lost their jobs in the tailoring industry after they had reached the age of retirement. In 1998, at age 67, Rutherford lost his job as production pattern room controller at Harvest Town Circle, and in 2001, Bentley, at age 73, was dismissed from Bodner Elem. While the separate claims related to unfair dismissal and redundancy payments, the cases have been wound up as a way to address the issue of age discrimination.

Charles Russell’s Paul Quain, who is also chair of the Employment Lawyers Association Pro Bono Group, said the case took up issues that had been left undetermined in a previous case, Nash v Mash/Roe (1998) owing to the death of the claimant. “Rutherford and Bentley are, in effect, part two. It’s very important to keep the issue of older workers’ rights going for determination – these important discriminatory law issues needed to be looked at,” he said.

The case was concerned with key points relating to the arbitrary nature of retirement age. “If a person in employment is under 65 and discriminated against then the law says it is unfair. If, however, a person is over 65 then they cannot bring a claim of discrimination,” said Quain. “If an employer sets the retirement age at 70 and then gets rid of someone at 65 then the employee is entitled to do something about it. If an employer sets it at 45 and gets rid of someone at 47 then nothing can be done. Where no age is set, the default is 65 and, over that, an employee cannot bring a claim.”

It is unclear how many people are working after retirement age and are therefore unprotected from discrimination. Quain said: “There are certainly a lot of people over the age of 65 who are still in the workforce, possibly working longer because there is not enough money in pensions funds and because people are now living longer than they used to.”

The team is assessing whether it will take the case to the appeal stage at the House of Lords.