Seems to me that we have been sweating over nothing and all our clever arguments over what Rutherford may or may not have said about pools don’t amount to a hill of beans. Yet again someone has noticed that Baroness Hales might actually know what she is talking about when it comes to discrimination!
The Court of Appeal have revisited the question of what the relevant pool should be in an indirect discrimination claim. Somerset County Council v Pike [2009] EWCA Civ 808 is helpful as it explains Rutherford (no mean feat you may think). What Kay LJ explains is that lawyers keep on misreading the majority decision of the House of Lords Rutherford. He identifies that Judge McMullen had it right when he refers to Baroness Hale’s reasoning in Rutherford as this was approved by the majority.
"76 … it matters not that there are other men and women who have left the workforce at an earlier age and are thus uninterested in whether or not they will continue to be protected. The people who want the protection are the people who are still in the workforce at the age of 65 …
77 … in my view we should not be bringing into the comparison people who have no interest in the advantage in question.
78. This approach, defining advantage and disadvantage by reference to what people want, chimes with [Canadian authority] …
82. The common feature is that all these people are in the pool who want the benefit – or not to suffer the disadvantage – and they are differentially affected by a criterion applicable to that benefit or disadvantage. Indirect discrimination cannot be shown by bringing into the equation people who have no interest in the advantage or disadvantage in question … "
The Court of Appeal have revisited the question of what the relevant pool should be in an indirect discrimination claim. Somerset County Council v Pike [2009] EWCA Civ 808 is helpful as it explains Rutherford (no mean feat you may think). What Kay LJ explains is that lawyers keep on misreading the majority decision of the House of Lords Rutherford. He identifies that Judge McMullen had it right when he refers to Baroness Hale’s reasoning in Rutherford as this was approved by the majority.
"76 … it matters not that there are other men and women who have left the workforce at an earlier age and are thus uninterested in whether or not they will continue to be protected. The people who want the protection are the people who are still in the workforce at the age of 65 …
77 … in my view we should not be bringing into the comparison people who have no interest in the advantage in question.
78. This approach, defining advantage and disadvantage by reference to what people want, chimes with [Canadian authority] …
82. The common feature is that all these people are in the pool who want the benefit – or not to suffer the disadvantage – and they are differentially affected by a criterion applicable to that benefit or disadvantage. Indirect discrimination cannot be shown by bringing into the equation people who have no interest in the advantage or disadvantage in question … "
So we are back to a pool that suitably tests the particular type of discrimination complained of. Helpful?
Probably as it least sets boundary markers even if it does not tells us exactly where the boundary is. Perhaps the only people who have really had any doubts are lawyers representing Respondents who as in the present case knew that they were down on disparate impact if the correct pool was adopted.
Peter D
Somerset County Council v Pike [2009] EWCA Civ 808:
http://www.bailii.org/ew/cases/EWCA/Civ/2009/808.html
Probably as it least sets boundary markers even if it does not tells us exactly where the boundary is. Perhaps the only people who have really had any doubts are lawyers representing Respondents who as in the present case knew that they were down on disparate impact if the correct pool was adopted.
Peter D
Somerset County Council v Pike [2009] EWCA Civ 808:
http://www.bailii.org/ew/cases/EWCA/Civ/2009/808.html
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