Rutherford v Secretary of State for Trade and Industry [2006] UKHL 19 is a UK labour law case concerning sex and age discrimination.

Mr Rutherford claimed that, because over 65 years old 7.6% of men and only 3.4% of women were economically active, the Employment Rights Act 1996 sections 109 and 156, which removed unfair dismissal and redundancy for over 65s, were discriminatory on grounds of sex.

Mummery LJ[3] held the Tribunal had erred in selecting its pool for comparison, because it should have followed R (Seymour-Smith) v Secretary of State for Employment [2000] ICR 244.

The House of Lords held that ERA 1996 sections 109 and 156 did not have a significant enough adverse impact to be discriminatory.

So the Tribunal erred in totally ignoring the effect of an ‘advantage led approach’.