United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS ZIMBA MOORE (Representative) Free Representation Unit 4th Floor, Peer House 8 –14 Verulam Street London WCIX 8LZ


 


RECORDER BURKE QC

Our decision is that this case should go to a full hearing; that being the case it is not necessary for me to give a full judgment. What I will say on our behalf is this.

1. In this case her employers, the Respondents, dismissed the Applicant, Mrs Burrill, in 1996. She presented an Originating Application to the Tribunal in July 1996. It appeared on the face of it that her claim that she had been unfairly dismissed and for a redundancy payment, would fail because she did not have the necessary qualifying period of two years employment.
2. At the time the well known case of Crown –v- Secretary of State Ex Parte Seymour-Smith has started its slow and convoluted course towards the final decision which emerged from the House of Lords earlier in this year. For a while the Tribunal adjourned the hearing of a preliminary issue on the qualifying period until the outcome of Seymour-Smith was known. In 1997 the Tribunal listed the case again for a hearing; and that hearing took place before Mr Menon sitting alone on 20 November 1997 in the London (North) Tribunal.
3. Mr Menon rejected an application for a further adjournment and hardly surprisingly, in the light of that rejection, decided to apply the law as it was and thus dismissed the Applicant's claims.
4. The Seymour-Smith case has been decided on the basis of evidence as to disparity between men who qualify with more than two years service and women who qualify with more than two years service up to 1993; there was no evidence of statistics before Mr Menon; whether those appearing for the Applicant were equipped with such statistics might be a matter of doubt; but Mr Menon would plainly not have heard any evidence to the effect in any event; nor was there any evidence as to objective justification for a departure from the requirements of article 119 put before the Tribunal, no doubt for the same reasons.
5. The decision in Seymour-Smith, by a majority of the House of Lords, was that, as at the time of the dismissal in that case, the qualification period did create indirect discrimination between men and women but that the 1985 order (which at that time established the necessary qualifying period) was objectively justified as at that time. Lord Nicholls said on this issue at the end of the passage in his speech in which he deals with the issue of justification. "I consider the Secretary of State has discharged the burden as showing the 1985 order was objectively justified in 1991."
6. The decision of the House of Lords makes it clear that, as time moves on, it may become more difficult to discharge the burden of showing that the qualification period is still objectively justified; and Miss Moore wishes to argue on behalf of the Applicant here, if this case ever gets back to the Tribunal because that is where it seems to me is likely to have to go if this appeal succeeds, that justification in 1991 is not justification in 1996 and that the requirement, as it was in 1996, was not objectively justifiable.
7. This is likely not to be the only old Seymour-Smith case, which is in the state that this case is in at this time before us, having been adjourned or not listed here in the Employment Appeal Tribunal since 1997 or 1998 while the final decision in Seymour-Smith has been awaited.
8. The points that Miss Moore makes in her skeleton argument, firstly that there ought to have been an adjournment and secondly, that there are live issues, despite the ultimate failure of the employee in Seymour-Smith, as to whether in 1996 the qualification was justifiable seem to us to be at least arguable and therefore we are going to allow this case to go for a full hearing. Not least among the points which are arguable is that, according to the decision in Davidson v City Electrical Factors [1998] IRLR 107, (a decision of the Employment Appeal Tribunal sitting in Scotland) the Employment Tribunal had no discretion as to whether or not an adjournment should be granted in what I might compendiously call Seymour-Smith cases; there was a right to such an adjournment. We understand that, since Davidson, the previous president of this Appeal Tribunal, Morison J, has indicated that Davidson contained the correct approach. The impact of Davidson may be regarded as different or as reduced now that Seymour-Smith has been decided; but that will be a matter for the division of this Appeal Tribunal which hears the ultimate appeal.
9. For these reasons we are going to allow this case to proceed to a full hearing.