England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE EATRF 97/0624/4

IN THE COURT OF APPEAL (CIVIL DIVISION )

Royal Courts of Justice

Strand

London W2A 2LL

Thursday, 21st May 1998

B e f o r e

LORD JUSTICE SIMON BROWN

LORD JUSTICE SWINTON THOMAS

LORD JUSTICE POTTER

LONDON UNDERGROUND LIMITED Appellant

v.

SUSAN PATRICIA EDWARDS Respondent

(Computer Aided Transcription of the Stenograph Notes of

Smith Bernal Reporting Limited, 180 Fleet Street

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

MR DAVID BEAN QC and MS INGRID SIMLER (instructed by Frances Low, Solicitor to London Transport) appeared on behalf of the Appellant.

MR ROBIN ALLEN QC and MR CLIVE LEWIS (instructed by Ms Pauline Matthews, Equal Opportunities Commission) appeared on behalf of the Respondent.

POST JUDGMENT DISCUSSION

LORD JUSTICE SIMON BROWN: For the reasons given in the judgments which have already been handed down, this appeal is dismissed. Yes, Mr Lewis.

MR LEWIS: My Lord, I would of course ask for the costs of this appeal. I do not anticipate that will be resisted.

LORD JUSTICE SIMON BROWN: Miss Simler, you presumably cannot contest that.

MISS SIMLER: My Lord, I cannot contest that and I do not.

LORD JUSTICE SIMON BROWN: So be it; with costs.

MISS SIMLER: What I do seek is your Lordships' leave to appeal to the House of Lords. My Lords, this appeal has raised matters that are of some importance in relation to sex discrimination claims, in my submission, and your Lordships have all indicated that your Lordships have found this a difficult case to resolve. In particular my Lord, Lord Justice Simon Brown, has referred to the fact that there is no authority bearing directly on the effect of the focus of section 1(1)(b)(i) of the Sex Discrimination Act on the proportions of those who can rather than those who cannot comply. That is a matter of some considerable importance in indirect discrimination cases, and in those circumstances I do seek your Lordships' leave to appeal to the House of Lords.

LORD JUSTICE SIMON BROWN: Mr Lewis?

MR LEWIS: I do resist, my Lord, primarily on two grounds. Firstly, we have now got to a situation where all three tiers -- the Industrial Tribunal, a very experienced Employment Appeal Tribunal and a very distinguished Court of Appeal -- have all dismissed the appeal, and it is not necessary, in my submission, to go to a fourth tier for the facts of this particular case to be resolved. This case really is now at an end. Secondly, my Lord, yes, you did say that you found these points difficult, but fortunately you were able to come to a clear, unequivocal and unanimous answer as to what the law is and that accords with the industrial judgment of the IT and indeed with the judgment of Morrison J in the EAT. So in my submission, although they are difficult, they are not such that your Lordships ought to invite the House of Lords to reconsider them. If of course the House of Lords wishes to do so Miss Simler will be able to petition them directly. So those would be the two grounds upon which I would invite you to refuse leave in this long-running case.

LORD JUSTICE SIMON BROWN: Do you want to say anything in response, Miss Simler?

MISS SIMLER: My Lord, I have said my piece.

LORD JUSTICE SIMON BROWN: Miss Simler, we certainly do not say this is a frivolous application; on the contrary we very well recognise that it is a case that possibly their Lordships may wish to entertain, but we think we ought to leave the decision to them. It is not one we can properly force on to them. That is only a very small number of cases indeed. Obviously if you do ask them to consider it you will want to remind them that they have outstanding a reference in Seymour-Smith to Luxembourg, and they obviously will then want to consider how matters stood here in relation to that litigation, but, for our part, we refuse leave. Thank you very much.

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