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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Smith v Gardner Merchant Ltd [1995] UKEAT 831_95_1910 (19 October 1995)
URL: http://www.bailii.org/uk/cases/UKEAT/1995/831_95_1910.html
Cite as: [1995] UKEAT 831_95_1910
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At the Tribunal
THE HONOURABLE MR JUSTICE MUMMERY (P)
MISS C HOLROYD
MS D WARWICK
JUDGMENT
PRELIMINARY HEARING
Revised
APPEARANCES
For the Appellant MS N CUNNINGHAM
(Representative)
Free Representation Unit
49-51 Bedford Row
London
WC1R 4LR
MR JUSTICE MUMMERY (PRESIDENT): This is the Preliminary Hearing of an appeal brought by Mr Smith. The appeal is against the ruling of the Industrial Tribunal held at London (North) on 24 May 1995, that the Tribunal had no jurisdiction under the provisions of the Sex Discrimination Act 1975 to entertain his claim of discrimination on grounds of his sexual orientation. His claim for sex discrimination, instituted by an Originating Application dated 28 June 1994, was accordingly dismissed. Extended Reasons were notified to the parties on 14 May. Mr Smith appealed by a Notice of Appeal dated 24 July.
The purpose of the Preliminary Hearing is to decide whether the Notice of Appeal raises an arguable point of law. If it does not, there is no point in going on to a full hearing. If it does, the arguable point of law will be debated and decided at a full hearing at which the Respondent may attend and be represented.
At the hearing today, Ms Cunningham of the Free Representation Unit has attended and has submitted a Skeleton Argument outlining her contentions as to why the Industrial Tribunal have misconstrued the provisions of the Sex Discrimination Act 1975. We have not thought it necessary to examine her contentions in detail for three reasons. The first is that it appears that the argument deployed in the Skeleton Argument receives support from a passage in Volume 2 of Harvey on Industrial Relations and Employment Law paragraph 44.01. That in our view, is good enough to entitle Mr Smith to have a full tribunal consider his appeal. We emphasise that we do not decide any point today, other than that there is a reasonable argument on a point of law. We think that there is. Whether that argument is correct or not will be decided at a full hearing. Secondly, we think it would, in any case, be premature to make a decision on this appeal against Mr Smith, in view of the fact that the House of Lords (this afternoon) will be handing down judgments in the case of Webb v Emo Air Cargo Ltd in which the House of Lords have to consider matters which may be directly relevant to the arguments on this appeal, namely, the question of comparators in the Sex Discrimination Act 1975 and the alleged incompatibility of certain interpretations of the Sex Discrimination Act 1975 with the Equal Treatment Directive 76/207, which is also relied upon in arguments in this case. It would be premature for this Tribunal to make a decision, when it knows that there is pending an authoritative ruling of the House of Lords on pertinent questions. Thirdly, it appears to us that it may be open, on the current state of the authorities, for Mr Smith to claim that the dismissal by the Respondents referred to in his Originating Application, and admitted by the Respondents, is an unfair dismissal. There is no dispute that he was dismissed. In his IT1 he claims only sex discrimination. The reason for that is that it was common ground before the Tribunal that he could not satisfy the two-year qualifying requirement for bringing an unfair dismissal case.
The Applicant, the Respondent and the Tribunal acted on that basis. The Respondent's answer to the claim made against them is that they dismissed him for gross misconduct. They deny discrimination against him on the grounds of sex in relation to that dismissal. Since the Tribunal heard argument on this matter and gave their reasons on 14 May, the Court of Appeal has decided in the case of R v Secretary of State for Employment (ex parte) Seymour Smith [1995] IRLR465 that the two-year qualifying period, in the Order made in 1985, has a disparate adverse impact on women, incompatible with the principle of equal treatment enshrined in the Equal Treatment Directive and that no objective justification had been established by the Secretary of State, the Respondent in proceedings for judicial review of the 1985 Order, for the discriminatory impact of the two-year qualifying period.
The question therefore arises as to whether, in the light of the declaration of the Court of Appeal that the two-year qualifying period was indirectly discriminatory, can be relied upon by Mr Smith in support of a claim that he is entitled to bring a case of unfair dismissal, even though he had been unable to satisfy the two-year qualifying period in the legislation. Ms Cunningham has expressed doubts as to how far this decision assists her client, who is a man. The successful applicants in that case are women. In our view, this is a point which she should have time to consider. It should be considered either by the Industrial Tribunal on an application for leave to amend, or by this Tribunal on an application for leave to amend the Notice of Appeal, in order to raise a further point of appeal. It would be inappropriate on a Preliminary ex-parte hearing to determine any matter of amendment. It would be inappropriate because a Respondent is entitled to be heard as to whether and, if so, on what grounds, he objects to an amendment. Those are matters which will have to be dealt with at a later stage; either on this appeal or on a further application for amendment to the Industrial Tribunal.
We have recorded these observations at a Preliminary Hearing, contrary to our normal practice, so that when this matter comes back for a full hearing, both the parties and the Tribunal Members, who may not be the same as sit today, will know why we have taken this course. The directions on this matter are that the case proceeds to a full hearing. As far as other directions are concerned, Ms Cunningham, you do not need the Chairman's Notes of Evidence.