Veitch Penny LLP - Exeter | Crediton, Devon

Case

Gidella & Others v Wandsworth Borough Council & Another - Employment Appeal Tribunal (19/09/02)

Issues

(1) Unfair Dismissal
(2) Sex discrimination
(3) European law

Facts

The Respondent Council dismissed the Applicants (who were male) in 1998, following their employment as bus drivers. They were dismissed because they had all reached the retirement age of 65, in line with the Respondent's retirement policy. As a result, proceedings were commenced for unfair dismissal.

Their case was based upon the principal of equal pay for equal work or work of equal value. They argued that section 109 of the Employment Rights Act 1996 (ERA 1996) should be disapplied, because it was in breach of Article 141 of the EC Treaty. Section 109 of the ERA 1996 states that employees may not complain of unfair dismissal if they are 65, or have reached the employer's normal retirement age. If the section could be disapplied, they could claim unfair dismissal. Article 141 states that each member state should ensure that the principle of equal pay was applied. The Applicants submitted that the section was in breach of Article 141 as it led to a disparity between men and women. Given their differing retirement ages of 60 and 65, more men than women are still in employment at the age of 65.

The Respondent conceded that the Applicants had been dismissed but stated they had been entitled to dismiss them by virtue of Section 109. The Tribunal agreed and therefore dismissed the Applicant's claim. The Applicant's statistical evidence showed that section 109 applied to 0.4% more men than women, as a percentage of the workforce.

The Applicants appealed this decision, and the Secretary of State was joined as a second respondent to the appeal.

Decision

The Employment Appeal Tribunal therefore had to consider whether the tribunal had mistakenly found that there was no sufficient disparity between women and men to constitute a breach of Article 141.

It was noted that the Employment Tribunal had not been able to use the guidelines outlined in the case of Harvest Town Circle Ltd -v- Rutherford, which related to the assessment of statistics in determining the disproportionate effect of section 109. The Appeal Tribunal stated that there would be cases in which the disparity would be "so obvious" that a mere consideration of the numbers or proportions alone would be sufficient. Likewise, there would be other cases where the disparity was "less obvious". Therefore, in such cases, the Tribunal consider the figures in greater depth, by also looking at proportions and ratios. The Appeal Tribunal agreed with the Applicants by deeming this case to fall within the latter category. It found that the Employment Tribunal should have undertaken an overall analysis of all relevant figures and proportions in order to determine a disparity. The appeal was allowed.

Comments

The Tribunal has now made its decision in the remitted case of Harvest Town Circle Ltd -v- Rutherford. These decisions do not mean that any dismissal of an employee over the age of retirement would be automatically unfair. Employers must have a fair reason to dismiss, and this clearly cannot be that an employee has reached retirement age.

Peter Taylor: 15/01/03