United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr N Fetto Representative Free Representative Unit 4th Floor 8 - 14 Verulam Street London WC2X 8LZ


 


MR RECORDER LANGSTAFF QC

1. This appeal, from a Decision of the London Central Employment Tribunal, promulgated on 17 November 2000, raises two issues: that of disparate impact and, secondly, that of objective justification.
2. It is the contention of Mr Fetto in an admirably brief Notice of Appeal, that the Employment Tribunal was in error in law in the way in which it dealt with each of those. We think that although he has two hurdles to surmount, that the appeal is reasonably arguable and we shall say just a little to indicate the basis upon which we are giving leave for this matter to be fully argued.
3. So far as disparate impact is concerned, the critical paragraph is paragraph 10 of the Employment Tribunal Decision. That presupposes a finding of fact that before Christmas 1998, Eric Ward, one of the two men working in the department, was off work, and could not work full-time. Mr Fetto has persuaded us that the Tribunal may have misunderstood the facts; he has done so by reference to a witness statement of Ms Samantha Collins, in a supplementary bundle, and secondly, he has argued that in any event, it may be thought that Mr Ward had a full-time contract under which he was taking permissible sick leave and thus was able to work to the requirements of a full-time contract. Both points seem to us to be arguable.
4. So far as objective justification is concerned, we note that the Tribunal directed itself at paragraph 13 of the need to balance the discriminatory effect of the condition, that is to look at the position of the employee on the one hand, against the reasonable needs of the party who applies the condition, that is the employer.
5. In paragraph 14 they identify each of the matters they have taken into account; none of those are factors which describe at all any discriminatory effect upon the employee. At paragraph 15 they say in the opening words, having balanced these factors, they reached the conclusion that the requirement was objectively justifiable. We think it is arguable that that may indicate that there was no proper balancing exercise, and if there was not that there would be an error of law. In addition, Mr Fetto has argued that the conclusion was, in the circumstances, perverse. It is best that we say nothing at this stage about that argument.
6. On those bases we, albeit with a little hesitation, consider that this is an appeal which justifies a full hearing - Category B, half a day, Skeleton Arguments to be provided no less than seven days prior to the hearing, together with copies of any authorities to be relied upon, that in particular applies to unreported authorities.
7. I also direct that, if possible, there be agreement between the parties prior to the full hearing, whether there was any evidence that Mr Ward was absent from work prior to Christmas 1998 by reason of having then suffered a heart attack.