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Two retired tailors fighting a cutting-edge employment case against the Secretary of State for Trade and Industry will not pay a penny for their Court of Appeal claim, thanks to a cabal of barristers and solicitors working on the matter free of charge.
John Rutherford and Samuel Bentley are challenging the UK Government’s assumed retirement age of 65 on the grounds that it is indirectly discriminatory against men.
The pair were both older than 65 when they lost their jobs with separate clothing manufacturers. However, under current legislation, employees over the age of 65 are prevented from bringing claims for wrongful dismissal or redundancy.
Robin Allen QC of Cloisters, which last year produced the employment team of the year at The Lawyer Awards, is leading the case, instructed by Charles Russell employment head David Green. Rachel Crasnow, also of Cloisters, and Paul Troop of Tooks Court are assisting. The entire team is acting pro bono. The Islington Law Centre, meanwhile, is advising Samuel Bentley.
The case, set to become one of the most high-profile employment disputes this year, has come far from its humble beginnings. In 1997, Troop, then a pupil barrister in his first six, discovered Rutherford’s claim while working at the Free Representation Unit, the legal charity that offers free employment advice and representation. In 1999, Troop took the case to the Employment Tribunal before rousing a posse of solicitors and barristers and calling on Charles Russell and Allen to help advise on the appeal.
The Court of Appeal’s decision will turn on an analysis of statistics, and the question of whether the Employment Appeal Tribunal (EAT) was right to base its decision on information about the entire workforce, rather than just those over 65. The EAT refused to examine the Secretary of State for Trade and Industry’s justification for the arbitrary age restriction. Barry Mordsley, an employment partner at Salans, said the EAT was “aware of the political consequences of its decision”.
Detractors have condemned the controversial case. Lawyers for British Airways in a similar dispute described the Rutherford case as “age discrimination by the back door”. However, Troop dismissed the claims as “cheeky”, insisting the argument is well supported by precedent. “This is not age discrimination by the back door,” he said. “It’s not unusual in indirect discrimination cases for age limits to have an impact in other areas like sex or race.” Age discrimination legislation does not come into force in the UK until 2006.
Green at Charles Russell said the firm takes on pro bono cases both for “deserving individuals” and where the case demonstrates interesting points of law. “Rutherford is a clear example of the latter,” he stated.
The case is set for a hearing before the Court of Appeal in March.