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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Harvest Town Circle Ltd v Rutherford [2001] UKEAT 1128_99_1007 (10 July 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/1128_99_1007.html Cite as: [2002] ICR 123, [2001] UKEAT 1128_99_1007, [2001] IRLR 599

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APPEARANCES

 

For the Appellant	MR DAVID READE Instructed By: Messrs Down Solicitors 156 High Street Dorking Surrey RH4 1BQ
For the Respondent	MR ROBIN ALLEN QC and MR PAUL TROOP Instructed By: Messrs Charles Russell Solicitors 8-10 Fetter Lane London EC4A 1RS


 


MR JUSTICE LINDSAY (PRESIDENT):

1. This appeal is concerned with sections 109 and 156 of the Employment Rights Act 1996 which provide respectively (broadly speaking) that an employee who has attained 65 years of age does not have the right either not to be unfairly dismissed or to receive a redundancy payment. The case, however, is not a somewhat premature one of "age-ism" or "age-discrimination", as one might at first think, but depends on an argument as to men being thereby put to such a disadvantage in relation to equality of pay that those sections are to be overridden by Article 141. The question arises as to the Employment Tribunal's jurisdiction and requires, for its understanding, that we should first set out the background.
2. In September 1998 the Respondent to the appeal, Mr John Rutherford, a Production Pattern Room Controller working for the Appellant Company, Harvest Town Circle Ltd., in London, E.5, was told by the Company that he was dismissed on the grounds of redundancy. He was 67 years of age at the time. The Company had no normal retiring age higher than 65. Mr Rutherford felt aggrieved. He presented an IT1 for redundancy and unfair dismissal on the 3rd December 1998. He claimed that there was no true redundancy situation at his workplace and, in effect, that in any event sections 109 and 156 were to be regarded as indirectly sexually discriminatory and on that account could not be relied upon by the Company.
3. The Company by its IT3 suggested that there should be a Preliminary Hearing at the Employment Tribunal to determine whether or not the Employment Tribunal had jurisdiction. The Employment Tribunal accepted that proposal and there was a hearing at the Tribunal at Stratford under the Chairmanship of Mr S. Duncan on the 16th July 1999. The decision and Extended Reasons were sent to the parties on the 16th August 1999. The unanimous decision of the Tribunal was that it did have jurisdiction to hear Mr Rutherford's claims, despite the fact

that he was over 65 years of age at the time of his dismissal and despite the provisions of sections 109 and 156.

4. The Company, which operates on a relatively modest scale as wholesalers in the ladies' and children's fashion industry and which employs some 35-40 people, presented a Notice of Appeal on the 30th September 1999. It appears before us by Mr David Reade. Mr Rutherford is represented by Mr Allen Q.C. leading Mr Paul Troop (who had appeared for Mr Rutherford below).
5. The argument which succeeded below can be briefly stated. It is this: Article 119 of the Treaty of Rome (now Article 141) requires observance by Member States of the principle that men and women should receive equal pay for equal work. Barber -v- Guardian Royal Exchange Group [1990] IRLR 240 ECJ illustrates that if, by whatever route, be it direct or indirect, any such inequality in pay arises, it is to be prohibited and that national Courts have a duty to safeguard individuals' rights to equality in pay and thus, if necessary, to override any national measures which infringe the Article. Awards in respect of unfair dismissal or redundancy payments are "pay" within the meaning of Article 119; see, respectively, R -v- Secretary of State for Employment , Ex Parte Seymour-Smith and Perez [1999] IRLR 253 CJ and Barber supra. Accordingly, if a national measure as to entitlement to unfair dismissal compensation or to a redundancy payment can be seen to be, for example, indirectly discriminatory to a particular extent as between men and women, then it is to be disapplied by the national Court, which is obliged to pay proper deference to Article 141. For that purpose such a national measure is to be regarded as indirectly discriminatory to the particular extent if it imposes a requirement which a considerably smaller percentage of women than men, or men than women, is able to fulfil and where the discriminatory measure is not justified by objective factors unrelated to any discrimination on the grounds of sex.
6. Thus far little or no dispute, as we understand it, arises between the parties on the law. However, the Employment Tribunal continued, and seems to have held (although never in terms precisely saying this), that, on their analysis of the figures presented to them, the statutory provisions we have mentioned did, indeed, affect to their disadvantage more than double the percentage of relevant men than of relevant women and that accordingly our domestic legislation is indirectly discriminatory on the grounds of sex unless it could properly be regarded as objectively justified by reference to features other than a difference of sex. The Employment Tribunal felt unable to conclude there was such objective justification. Accordingly (although, again, this is not clearly said in terms) sections 109 and 156 were to overborne and the Employment Tribunal accordingly had jurisdiction to hear Mr Rutherford's claims for unfair dismissal and redundancy payments notwithstanding his age and those statutory provisions.
7. At the risk of over simplification, we see the principal questions arising on the appeal to be related, firstly, to whether the statistics presented to the Employment Tribunal and the Tribunal's analysis of them provided an adequate base in law for the Tribunal's conclusion that the national measures in issue were indirectly sexually discriminatory and, secondly, to whether the Tribunal's handling of the issue of objective justification was appropriate. We need to ask ourselves whether there were errors of law in either of those areas.
8. However, before we turn to the statistics presented to the Employment Tribunal and the Tribunal's analysis of them, we shall first look at the authorities to see to what features the statistics in such a case should be addressed.

A. Disparate Effect

9. As to that, Mr Allen's argument on what might be called a European approach begins with reference to Article 141's requirement that each Member State is to ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied. He refers next to Council Directive 97/80 on the burden of proof in cases of discrimination on the grounds of sex. Article 2 of that Directive provides:-

"1. For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no discrimination whatsoever based on sex, directly or indirectly.

2. For purposes of the principle of equal treatment referred to in paragraph 1, indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex."

One notices the reference to proportions (rather than numbers) and to the need for the one proportion to be "substantially" higher than the other. The apparent clarity of that provision is not, however, reflected in the language used in the cases, either domestic or in the European Court of Justice.

10. Thus, to look first at cases in the European Court of Justice, Bilka-Kaufhaus GmbH -v- Weber Von Hartz [1987] ICR 110 at paragraph 31 on page 125, in answering the question of whether the exclusion of part-time workers from an Occupational Pension Scheme constituted discrimination contrary to Article 141 (119) said (with our italics):-

"... Article 119 ... is infringed by a department store company which excludes part-time employees from its Occupational Pension Scheme where that exclusion affects a far greater number of women than men unless ..."

The European Court of Justice then refers to the possibility of redemption if the exclusion was based on objectively justified factors unrelated to any discrimination on the grounds of sex.

11. In Nimz -v- Freie und Hansestadt Hamburg [1991] IRLR 222 at page 225, paragraph 12, dealing with part-time and full-time employment, the ECJ said (with our italics) that a difference in pay:-

"... leads to discrimination against female employees in comparison with male employees when it turns out that in fact a considerably smaller percentage of men than women are employed part-time."

and again made reference to objective justification. The European Court of Justice added, in Nimz, though this is not in issue, as we have mentioned, in our case that:-

"It should also be remembered that, according to established case law of the Court, see in particular the judgment of 9th March 1978, Simmenthal, 106/77. rec. p. 629, the National Court to whom it falls, under its jurisdiction, to apply the provisions of Community law, is obliged to ensure the full effects of these measures, disapplying, wherever necessary, on its own authority, any contrary provision of national legislation, without requesting or waiting for the removal of that provision by legislative means or by any other constitutional process."

Kowalska -v- Freie und Hansestadt Hamburg [1992] ICR 29 at paragraphs 13, 16 speaks of a "considerably lower percentage".

12. By contrast, (though it is hard to be sure whether any contrast was truly intended) , in Hellen Gerster -v- Freistaat Bayern [1997] ICR the ECJ at its paragraph 30 said (with our italics):-

"According to settled case-law, indirect discrimination arises where a national measure, although formulated in neutral terms, works to the disadvantage of far more women than men (see, to that effect, Case - 444/93 Megner and Scheffel -v- Innungskrankenkasse Rheinhessen-Pfalz [1995] ECR I-4741, paragraph 24; and Case C-343/92, De Weerd (née Roks) and Others [1994] ECR I-571, paragraph 33)."

Similarly in Gruber -v- Silhouette International ECJ 14th September 1999 there is again reference to the "disadvantage of far more women than men".

13. Thus, even before coming to Seymour-Smith in the European Court of Justice, it can be seen, upon looking at European Court of Justice cases, that there had been no constancy in cleaving to a percentage or proportion as opposed to numbers or to the difference between the two (whether expressed as the one being higher or lower than the other) as needing to be "substantial" as opposed to "considerable".
14. In Reg -v- Secretary for Employment, Ex Parte Seymour Smith and Anor [1999] ICR 447 ECJ that Court, considering what was the legal test for establishing whether a measure adopted by a Member State had such a disparate effect as between men and women as (unless justified) to amount to indirect discrimination for the purposes of Article (141), said, at page 490 paragraph 59:-

"59. And next, as the United Kingdom Government was right to point out, the best approach to the comparison of statistics is to consider, on the one hand, the respective proportions of men in the workforce able to satisfy the requirement of 2 years' employment under the disputed rule and of those unable to do so, and, on the other, to compare those proportions as regards women in the workforce. It is not sufficient to consider the number of persons affected, since that depends on the number of working people in the Member State as a whole as well as the percentages of men and women employed in that State.

60. As the Court has stated on several occasions, it must be ascertained whether the statistics available indicate that a considerable smaller percentage of women than men is able to satisfy the condition of 2 years' employment required by the disputed rule."

The ECJ was there going in more detail than ever before into the issues and the reference there to the "best approach" suggests that there are more than two possible approaches; one sees also that a reference to numbers alone will not be sufficient. The passage also shows that at this point in the judgment the Court was looking at the respective percentages of men and women, firstly, able to comply and, secondly, unable to comply with the requirement in issue. Four figures were thus involved. That possible enlargement of the approach to the question was then, as it seems, shrunk back to a possibly more limited test as, in its paragraph 65 on page 491 the ECJ concluded:-

"..... The national Court must verify whether the statistics available indicate that a considerably smaller percentage of women than men is able to fulfil the requirement imposed by that Measure. If that is the case, there is indirect sex discrimination, unless that measure is justified by objective factors unrelated to any discrimination based on sex."

There one sees reference to proportions only and of only those able to fulfil the requirement (a two-figure comparison). The difference required is that the one should be "considerably" smaller than the other rather than using the language of the Directive 97/80, as cited above, which speaks of the figures being "substantially" different. Paragraph 65 does not, at any rate expressly, seem to authorise or contemplate the use of any other approach than that which it thus specifies (at any rate if one leaves aside the possibility of a smaller but constant and persistent disparity sufficing, a feature which became important in Seymour-Smith but which has not been argued in the case at hand). So much for the ECJ cases cited to us.

15. When we turn to our domestic authorities we see yet more references to both proportions and to numbers, to descriptions of the margin required between the two before one arrives at actionable discrimination and also one sees, as a factor re-emerging in greater detail than in the ECJ's paragraph 65 cited above, the question of whether the Court or Tribunal is to look at comparisons, be they of numbers or proportions, between those "disadvantaged" or of the "non-disadvantaged" or of both.
16. Thus in Barry -v- Midland Bank plc [1999] ICR 859 H.L. all five of their Lordships arrived, albeit by different routes, at the conclusion that there was no actionable discrimination suffered by Mrs Barry entitling her to the relief which she claimed under the Sex Discrimination Act 1975 and the Equal Pay Act 1970. Lord Clyde held that if the Bank Pension Scheme provisions there in issue was discriminatory, then he agreed with Lord Nicholls' view that the scheme would nonetheless be objectively justified. Lord Nicholls, alone of their Lordships, dealt in any detail with the question of whether or not the Scheme had a disparate impact on women. In a case where the evidence was, in a number of respects, lacking, in particular as to the discriminatory effect on women, the question of a disparate effect on women was finally left undecided. However, it seems clear that, whilst Lord Nicholls believed that the scheme had some discriminatory consequences, if they had been sufficient to make the scheme prima facie unlawful, he would in any event have held that the scheme was lawful as being objectively justified. What is important about Barry for immediate purposes is Lord Nicholls' look at statistics on the question of disparate effect. He said at page 869:-

"In order to decide whether the Bank's scheme has a disparate adverse effect on women, a comparison must be made between, on the one hand, the respective proportions of men in the Bank who are not disadvantaged by the difference in treatment of which complaint is made and those who are disadvantaged and, on the other hand, the like proportions regarding women in the workforce: see Reg -v- Secretary of State for Employment, Ex Parte Seymour-Smith (Case C-167/97) [1999] ICR 447, 490 paragraph 59. These proportions by themselves can be misleading, because they are affected by the comparative sizes of the non-disadvantaged group and the disadvantaged group. The smaller the disadvantaged group in proportionate terms, the narrower will be the differential. Take an employer whose workforce of 1,000 comprises an equal number of men and women. 10% of the staff (100 employees) work part-time, and of these 90% are women. A scheme which disadvantages part-timers will disadvantage 10 men (2% of the male employees) and 90 women (18% of female employees). If the figures were the same save that the total workforce was 10,000 employees, the disadvantaged part-timers would comprise 10 men (O.2% of male employees) and 90 women (1.8% of female employees). A better guide will often be found in expressing the proportions in the disadvantaged group as a ratio of each other. In both my examples the ratio is 9:1. For every man adversely affected there are 9 women. Absolute size, in terms of numbers, remains relevant, since a low ratio may be of little significance in a small company but of considerable significance in a large company.

In the present case the figures needed to make these comparisons are not available."

Lord Nicholls thus points to both the four-figured comparison of the European Court of Justice's paragraph 59 in Seymour-Smith and the two-figured comparison of its paragraph 65. Secondly, he introduces or re-introduces attention being paid to numbers as well as to proportions (which can, on their own, be misleading - see also Balcombe L.J. at [1995] ICR 904). He refers to a "better guide" suggesting, of course, that more than one is open to Tribunals, and he adds a suggestion that one is to look at the proportions in the disadvantaged groups as a ratio of each other. The processes which he suggests may be useful for an informed comparison to be made plainly go beyond that contemplated in paragraph 59 of Seymour-Smith in the European Court of Justice and, indeed, beyond that in the ECJ's paragraph 65.

17. When Seymour-Smith returned to the House of Lords it was Lord Nicholls that gave the leading speech on the part of the (narrow) majority. Leaving aside the issue, important in that case but not arising in the argument in ours, of a persistent and constant disparity between the figures for men and for women but of a magnitude less than considerable, Lord Nicholls draws attention to the analysis by the European Court of Justice in Seymour-Smith, saying:-

".... I do not understand the Court of Justice to have rejected use of the figures relating to the non-qualifiers in a suitable case. Indeed the Court has looked at the composition of the disadvantaged group in several cases, although in none of them was there an issue on this point: see. for instance, Bilka-Kaufhaus GmbH -v- Weber von Hartz (Case 170/84) [1987] ICR 110, 125, para 31; Nimz -v- Freie und Hansestadt Hamburg (Case C-184/89) [1991] ECR I-297, 319, para 12, and Kowalska -v- Freie und Hansestadt Hamburg (Case C-33/89) [1992] ICR 29, 34-35, paras 13-16. Having regard to the conclusion I have expressed above on the issue of disparate impact, it is unnecessary to reach a firm conclusion on this point. I prefer to leave this question open for another occasion."

18. Where does this leave us? Again leaving aside the cases where a smaller but persistent and constant disparity appears, we believe the authorities are to be synthesised and may be extended as follows:-

(i) There will some cases where, on the statistics, a disparate impact is so obvious that a look at numbers alone or proportions alone, whether of the advantaged (qualifiers) or disadvantaged (non-qualifiers), will suffice beyond doubt to show that members of one sex are substantially or considerably disadvantaged in comparison with those of the other;

(ii) However, in less obvious cases it will be proper for an Employment Tribunal, as the national Court of fact, to use more than one form of comparison, no one of which is necessarily to be regarded as on its own decisive;

(iii) In such less obvious cases it will be proper for the Employment Tribunal to look not merely at proportions (as proportions alone can be misleading) but also at numbers, and to look at both disadvantaged and non-disadvantaged groups and even to the respective proportions in the disadvantaged groups expressed as a ratio of each other;

(iv) It will never be wrong for a Tribunal to look at more than one form of comparison, if only to confirm that the case remains as obvious as it had first appeared. Moreover, if there is any doubt as to the obviousness of the case, the tendency should always be to look at a second or further form of comparison;

(v) As more cases of indirect discrimination are heard, a better feel, a more soundly based assessment of what is or is not properly to be regarded as a considerable or substantial disparity will develop. For example, in cases similar to it, regard will doubtless be had to the fact that in Seymour-Smith the ECJ found the 1985 disparity of 8.5% to be not considerable - see supra [1999] ICR 491 - and, when the case returned to the House of Lords, see Lord Goff at [2000] ICR at p. 254 and Lord Nicholls at p. 258, Unfortunately, those seeking a simple and universal touchstone must be disabused; as numbers as well as proportions will be likely, save in the most obvious cases, to need to be taken into account and as different forms of comparison, of their nature, throw up different scales of difference, it would be a mistake (even leaving aside the cases of persistent but constant smaller disparities) to think that any disparity of less than 8.5% must necessarily be found not substantial or not considerable.

(vi) No distinction is to be drawn between a considerable and a substantial disparity. That being so, it would be a mistake to conclude that anything that was merely not trivial or de minimis sufficed;

(vii) The Employment Tribunal, in such less obvious cases, after looking in detail at such figures as should have been laid before it, must then stand back, as it were, and, assimilating all the figures, is then to judge whether the apparently neutral provision criterion or practice in issue has a disparate impact, be it on men or women, that could fairly be described as considerable or substantial.

19. That, as it seems to us, is the proper approach on the law; turning to the statistics presented at the Tribunal below, given that Mr Rutherford was dismissed in September 1998, no complaint can be made of the range of years, 1993-1998 inclusive, the figures for which were thus presented. The Employment Tribunal, looking at the material put in front of them, concluded:-

"We believe that the statistics (which we are told to do not go back beyond 1993) show that throughout a considerably higher percentage of men over 65 being economically active in all the years from 1993-1998 inclusive. Contrariwise there is a considerably smaller percentage of economically active women over 65 during the same period. In 1998, the year of dismissal, 3% of just over 5,000,000 women over 65 were economically active, that is in employment or available to work within two weeks. This compares with 8% of just over 3,500,000 men over 65 who were economically active. Looking in particular at the percentages, we note that throughout the entire period the percentage of economically active males are [sic] more than double the percentage of economically females. Accordingly in our decision the domestic legislation is indirectly discriminatory on grounds of sex unless it can objectively justified by other factors than a difference of sex."

20. There are, as it seems to us, serious flaws in that approach. To illustrate by reference only to the figures for 1998, the Tribunal's figures can be tabulated as follows:-

1998	1998	1998
	THOUSANDS	THOUSANDS
	Females	Males
All in employment (a)	168	266
Economically active (b)	172	275
Economic Activity Rate (b/b + c)	3.0%	8.0%
Economically Inactive (c)	4,834	3345
Total	5,006	3620

These figures are, firstly, mistaken; the true computation of the "Economic activity rate" is 3.4% (not 3%) for the female "economic activity rate" and 7.6% (not 8.0%) for the male. The comparison - 3.0% to 8.0% - on which the Tribunal relied was thus not a correct one to make. The 5% gap (8%-3%) was truly one of 4.18% (7.60%-3.44%). With only small figures being in issue, that difference (itself of a reduction of 16.4%) is not to be overlooked.

21. Secondly, although this point was not taken below and is not relied upon before us, we find it hard to see how it can be correct, when assessing the possible disparate effect of unfair dismissal and redundancy provisions on the over 65s, to have in mind all over 65s describable as economically active, a figure which (on the definitions used) will include, for example, numbers of self-employed, numbers of those - directors and partners perhaps - in practical control of their own employment and numbers of persons on fixed term contracts to whom contractual relief would exceed anything statutorily available. It could not be assumed that such classes, unlikely to be affected by unfair dismissal or redundancy legislation, would fall equally or in any other as yet ascertained ratio between men and women.
22. Thirdly, reference to the totals, 5,006,000 women and 3,620,000 men, will surely include literally millions to whom unfair dismissal or redundancy is utterly meaningless; to include, for example, eighty and ninety year olds who have no wish or who have no longer the physical and mental ability to work, amongst the comparison serves only to distort the picture, especially since, as women in general live longer than men, the figure for women over 65 either unable or unwilling to work at any one time is likely to be larger than the corresponding figure for men.
23. Fourthly, these figures throw no real light on the impact of sections 109 and 156 as they look only at those who have survived to 65 and have remained in or have taken up employment. All men and women unfairly dismissed or made redundant upon their attaining 65 will not appear in these figures. Those who retired because they knew that they might otherwise be dismissed, will not appear in the figures. One is thus attempting to judge the impact of the legislation by looking only at those upon whom it has not, at the time of the statistics, had an impact but upon whom it might later have an effect. One is leaving out those upon whom its effect has, by the same date, perhaps already been crucial.
24. These factors, taken together, illustrate, in our view, the inutility of the figures laid before the Tribunal; they cannot serve the purpose for which it was intended they should be used.
25. We recognise that in Seymour-Smith the figures upon which all Courts relied were, as to those who could not comply with the qualification there in issue (of having put in at least 2 years' service) were figures not of persons actually affected to their disadvantage by the legislation then in issue but of persons who might be, in the sense that it could transpire that they would be dismissed without remedy before they had served the 2-year period then required. It thus cannot be said that in all cases figures for those who might be put to a disadvantage are outside the range of that which has to be considered. However, in Seymour-Smith the relevant comparisons, as Mr Reade emphasises, included figures for the total workforce. No corresponding figures (i.e. of those both under and over 65) play any part in the Employment Tribunal's reasoning in the case at hand.
26. Mr Allen, underlining to us that we can only deal with errors of law, reminds us, by analogy with domestic cases as to the composition of "pools", of the decision of Waite J., President, in Kidd -v- DRG (UK) Ltd. [1985] IRLR 190 EAT paragraph 20 as follows:-

"The choice of an appropriate section of the population is our judgment an issue of fact (or perhaps strictly a matter for discretion to be exercised in the course of discharging an exclusive fact-finding function) ..."

That approach could perhaps lead to a conclusion that the Employment Tribunal's approach was invulnerable as being entirely within its province as a matter of fact. However, that passage has recently attracted some comment in the Court of Appeal in Allonby -v- Accrington and Rossendale College [2001] IRLR 364 at 368 where Sedley L.J. says:-

"I would sound a strong note of caution about this. As the EAT's excellent analysis of the possible pools shows, once the impugned requirement or condition has been defined there is likely to be only one pool which serves to test its effect. I would prefer to characterise the identification of the pools a matter neither of discretion or of fact-finding but of logic. This was the approach adopted by this Court in Barry -v- Midland Bank plc [1998] IRLR 138, 144 and endorsed by Lord Slynn on further appeals [1999] IRL 581, 584. Logic may on occasion be capable of producing more than outcome, especially if two or more conditions or requirements are in issue. But the choice of pool is not at large."

We respectfully adopt that view. Here, in our judgment, logic suggests that the impact, be it even or disparate amongst men and women, of sections 109 and 156 cannot be fairly assessed in any informed way by reference to the figures which the Tribunal had laid before it. The Tribunal below, through no fault of its own, in our view erred in law in trying to do, and, as it seemed, succeeding in doing, the impossible. Furthermore, the case, to use the language of our earlier analysis of the law, would undoubtedly fall into the "less obvious" category such that the Tribunal should have looked into comparisons other than the (mistaken) one between 3% of just over 5,000,000 and 8% of just over 3,500,000, the only one to which they refer.

27. Mr Allen invited us, if we had any doubts on the matter, to make a preliminary reference to the European Court of Justice to raise this question:-

"Where 7.6% of males over 65, but only 3.4% of females, are economically active, is a rule that denies compensation for unfair dismissal to such persons contrary to Article 141 in the absence of any evidence of objective justification?"

The question supposes that all those 7.6% of males and 3.4% of females over 65 are susceptible to unfair dismissal, which is very unlikely to be the case. Moreover, to frame that question at this stage would leave the European Court of Justice without any view from the national Court as to objective justification. The better course, in our view, is that we remit the matter to the Employment Tribunal, as we shall return to below. But that reference to objective justification introduces as to the next subject.

B. Objective Justification

28. This subject was raised below. The Company's representative below submitted that there were social policy considerations for limiting applicants claiming unfair dismissal or redundancy payments to those under 65. Mr Troop countered below by saying there was no evidence that the discrimination he argued to be the case was justified by factors unrelated to difference of sex. The Employment Tribunal, to continue on from a sentence we have already cited, said:-

"Accordingly in our decision the domestic legislation is indirectly discriminatory on the grounds of sex unless it can be objectively justified by other factors than a difference of sex. This may be the case, but no evidence has been produced in this respect and we must accordingly disregard pure speculation."

That, in our view, is far too summary a reaction to so important a subject. The Employment Tribunal was obliged to conduct the hearing in such manner as it considered most appropriate for the clarification of the issues before it - Employment Tribunal rule 9 (1). It would be quite unreasonable to expect a small company such as Harvest Town Circle Ltd. itself to be familiar with the objective justifications arguably available to support important primary legislation such as sections 109 and 156. Where the validity of primary legislation affecting literally hundreds of thousands of people is in issue, it seems to us essential, if the parties have not themselves made adequate arrangements for evidence being given on the subject of objective justification, that the Tribunal itself should take pains to see that it is sufficiently informed on the subject. The matter cannot properly be left simply on the basis that there is an onus on one party or another and that the onus has been left undischarged. The obvious course, in a case such as the one at hand, was for the Employment Tribunal to have requested an invitation to be sent to the Secretary of State in order that he might consider what arguments there were by way of objective justification. Given that State and other pensions are commonly paid from age 65 or even earlier and that in a sense it may be that every employee over 65 who remains in work might thereby exclude some younger (unpensioned) person from the same job, the existence of possible objective justifications irrespective of sex seems to us so obvious and informed argument on the point to be so essential to a just decision that for the Employment Tribunal to fail invite the Secretary of State to be joined represents, in our view, an error of law. Of course, he could decline to be joined or, even if joined, could decline to take any active part. If necessary, witness summonses could be used and the Secretary of State may, if necessary, be joined as a party against his will. Where the validity of important primary legislation is in issue it would seem to us little short of irresponsible on the Secretary of State's part for him, without giving reasons, to do nothing to explain the policy considerations which may have lain behind the will of Parliament as expressed in the primary legislation in issue. Where literally hundreds of similar cases could arise, it would plainly be unjust for some cases, indistinguishable from one another, to be decided in his absence to one effect and then others to be decided otherwise because of his presence, nor would it be helpful if he was bound by the result in one (having been joined as a party) but not in others (because he was not so joined).

29. The way in which the subject of objective justification was dealt with below provides, in our view, a second ground for remitting the matter afresh, this time with an invitation being sent to the Secretary of State. He may be joined as a party and is to be invited to draw attention to any factors which he believes may properly be regarded as objective justification for the primary legislation here in issue or, alternatively, to explain, if he chooses not to attempt to justify the legislation which Parliament had passed, why that is so.

C. Conclusion

30. It may be thought cowardly on our part if, having described the statistics laid before the Employment Tribunal as inadequate for the task, we fail to say what statistics would have been adequate. At first blush it seems to us that those put at a disadvantage by the primary legislation in issue would consist of or would need to include all those who, on arriving at age 65, would have wished, and would have been physically and mentally able, to continue in employment properly-so-called but who either were then dismissed or made redundant by reason of the relative freedom which the legislation conferred upon their employer or who were so fearful of that freedom being exercised against them that they accepted retirement. We would not wish to include in any statistics reference to persons who were neither physically nor mentally able, nor wished, to be employed. However, we have no means of knowing whether statistics of such kinds could be made available or whether adequate inferences sufficient for the task could be drawn from other statistics. Moreover, as the argument before us has largely been, on the one hand, that the statistics presented below were sufficient and, on the other, that what was drawn from them was inappropriate, what range of alternative statistics might have been possible to have been laid before the Tribunal below has not been explored. We thus shrink from telling the Employment Tribunal what statistics it is to require upon the remission if adequate consideration is to be given to the questions before it; that will be a primary subject which, upon hearing argument on the point, and upon having the range of possible alternative statistics explained, it will need to grapple with.
31. For the reasons we have given we allow the appeal, set aside the Employment Tribunal's decision and remit the matter for hearing afresh. There is no reason why either side should have lost confidence in the panel which heard the main matter in July 1999 but, as a direction that the remission should be heard by the same Panel as before might delay the fresh hearing, we make no such direction.