United Kingdom Employment Appeal Tribunal

APPEARANCES

EAT/634/96 MR A LEWIS v AIRFLOW STREAMLINES PLC Engineering Employers Federation

EAT/1013/96 MR T GRANT v AP PRECISION HYDRAULICS LTD Broadway House

EAT/1080/96 MR A J CRAIG v ROSE BEARINGS LIMITED Tothill Street

EAT/1169/96 MR A AULAQI v GUEST & CHRIMES LTD London SW1H 9NQ

EAT/1214/96 MR D HORTON v SPECIALIST HEAT EXCHANGERS LTD

EAT/365/97 MRS D LINGARD v ROSE BEARINGS LTD

EAT/357/98 MRS H WILLIAMS v PLESSEY SEMICONDUCTORS LTD

MR J COPPEL (of Counsel)

On behalf of the above 7 Respondents

EAT/586/97 MR C MACDONALD v OPTICAL FIBRES

MR J COPPEL (of Counsel) Messrs Mace & Jones Solicitors

On behalf of the above Respondent 14 Oxford Court

Manchester M2 3WQ

EAT/830/96 MR N GODFREY v CONCARGO LTD

MR J COPPEL (of Counsel) Messrs Lyons Davidson Solicitors

On behalf of the above Respondent Bridge House

48-52 Baldwin Street

Bristol

BS1 1QD

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EAT/1379/96 MR T ANDREWS v MARLEY FLOORS LTD

MS A RUSSELL (of Counsel) Messrs Argles Stoneham Burstows

On behalf of the above Respondent Solicitors

12 Mill Street

Maidstone

Kent ME15 6XU

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EAT/96/97 MR W BAKER v GLOBAL MARINE DRILLING

MR J COPPEL ( Of Counsel) Messrs Paull & Williamsons Solicitors

On behalf of the above Respondent Investiment House

6 Union Row

Aberdeen AB10 1DQ

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EAT/176/97 MR G MANLEY v CHESTERFELT LTD

MS J EADY (of Counsel) Messrs Blakesley Rice McDonald

On behalf of the above Respondent Solicitors

Gray Court

99 Saltergate

Chesterfield S40 1LD

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EAT/280/97 MR W FINNEY v HILLSYDE FOUNDRY

EAT/436/97 MR I CUTHBERT v A M PACKAGING LTD t/a AMP ROSE

EAT/958/97 MR D HOLMES & MR T BONE v PACCAR UK LTD t/a FODEN TRUCKS

EAT/1264/97 MR R HODDER v THE BERKELEY LEISURE GROUP LTD

EAT/905/96 MR T DUNWELL v CLARKES CRANKSHAFT LTD

EAT/906/96 MR D BEESON v CLARKES CRANSHAFT LTD

MR J TAYLER (of Counsel) Messrs Rowley Ashworth Solicitors

On behalf of all of the above Appellants 247 The Broadway

Wimbledon

London SW19 1SE

Respondents neither present nor represented in the above 7 cases

APPEARANCES

EAT/642/98 MRS J RIVETT v NORWICH KITCHEN CENTRE

MR J TAYLER ... of Counsel Messrs Steele & Co Solicitors

On behalf of the above Appellant 2 The Norwich Business Park

Whiting Road

Norwich

Norfolk NR4 6JD

Respondent neither present nor represented

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EAT/370/97 MR D BAZIL v B B SUPPLY CENTRE LTD

MR D PANASAR (of Counsel) Messrs Kingsford Stacey Blackwell

On behalf of the Respondent 14 Old Square

Lincoln's Inn

London WC2A 3UB

Appellant neither present nor represnted

__________________________________________________________________________________________________________

EAT/1329/96 MR J SAMERAI v PEGASUS SECURITY GROUP LTD

Appellant & Respondent neither present nor represented

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MR JUSTICE LINDSAY (PRESIDENT)

1. This is a directions hearing in relation to a large number of cases which have a common feature and that is they concern unfair dismissal between 1995 and July 1997, those dates being the dates of the alleged unfair dismissals. In each case the Respondent met the application or the application was met by the Employment Tribunal with an allegation that the Applicant had not served sufficient time in order to be able to claim for unfair dismissal.
2. In all the cases less than two years has been served. I think there are some cases where less than one year has been served but the majority of the cases concern persons who claimed unfair dismissal when they had put in between one and two years' service at a time when, on the face of things, the legislation required two years' continuous service before a claim could be made.
3. The cases were heard at a time before the House of Lords had decided the Seymour Smith case. The Seymour Smith case dealt with dismissals in 1991 and heard statistics that ran down at least until 1992 but it is apparent from the speeches, particularly that of Lord Nicholls, in Seymour Smith that, first of all, figures changed from time to time, as one would expect, and, secondly, that so far as objective justification is concerned the Government of the day is under a continuing duty to review matters to see whether what might have been proper as a legislative provision at one stage has not become improper by way of disparate effect between man and woman over the years.
4. Thus it does not follow that the decision of Seymour Smith, which related to 1991, should necessarily apply to these cases which, as I say, concerned dismissals between 1995 and July 1997. These cases have come up and have been arranged to come on together in order that we can deal with as many cases as possible at a time. And today is a Directions Hearing that brings the parties together in order that the future of the cases can be regulated. A number of different questions arise, which I will have to deal with one at a time.
5. The first is in relation to evidence as to disparate impact between men and women. In some of the cases below evidence was adduced before the Employment Tribunal (not certainly in all) but it would be very inconvenient to hear the cases and determine some on the footing that no evidence was given below and on the footing that others did have evidence given below. The only just course, it seems, would be to have the same evidence in all the cases. The parties are moving towards agreement of the statistical evidence. I do not think it has been foreseen that any evidence other than statistics is likely to need to be adduced. The proposal that Mr Taylor, on behalf of the Applicants or the main body of Applicants, makes is that a period of, say, a month should be afforded to the parties in order that they can agree between them, first of all what are the statistics that are to be presented and, secondly, that it is appropriate that they may be presented.
6. No-one, I should say, has opposed that general approach and so I direct that within thirty-five days there should, if possible, be an agreement between the parties, first of all that evidence can be adduced by way of statistics in all the cases and, secondly, what those statistics are to be. If within that period of thirty-five days it has become apparent that agreement will not be possible then the matter must be restored to me. I would hope that in the first instance it could be restored to me simply in writing rather than having everyone turning up all over again. That is the first direction.
7. The second important point concerns the joinder or not of the Secretary of State under Rule 18. At an earlier hearing I directed that the papers should be sent to the Secretary of State and that he be asked whether he wished to be joined as a party. The reason for that was that it seems to me too much to expect of the relatively small companies concerned here themselves to mount an argument for objective justification, that being very much an area likely to be known chiefly, if not only, to the Secretary of State. Seymour Smith indicates that the Secretary of State is to keep under constant review the propriety of legislative provisions such as the time bar provision or continuous service bar that is here relevant and it seems that the Secretary of State would be the natural party to argue objective justification, were it to become relevant.
8. It seems to me inconvenient that one could get to a situation in which justification was to be ruled upon and yet where the Secretary of State had not been a party to the decision on disparate impact and it thus seems appropriate to join the Secretary of State here and now. Of course, whether the Secretary of State thereupon takes an active part is entirely a matter for him. But I do join him here and now so that he will hereafter be bound by the decisions in the case, whether or not he has taken an active part.
9. A question then arises as how the issue of objective justification is to be dealt with. This I find not at all easy to determine. On the one hand it would be possible here and now, having joined the Secretary of State, simply to adjourn the question of justification because if there transpires to be no disparate impact then justification never arises. But it could be that to have justification as a live issue from now on would involve not only the Secretary of State but all the parties in limbering up for issues which turn out to be unnecessary.
10. On the other hand, if justification is adjourned, that introduces the prospect of delays in hearings in a split trial that might have to consist, firstly, of the disparate impact side of things being taken to a full judgment and then possibly, an interval and then a return simply to hear justification. I have not found the decision between those two courses at all easy but I think on balance my preference is to adjourn the question of objective justification. It also is a way of dealing with Mr Taylor's argument that justification should not be permitted to be raised in any case and so, whilst I have joined the Secretary of State, I adjourn the question of objective justification and adjourn also the question of whether objective justification can be raised in these proceedings.
11. So far as concerns pleadings as to justification (perhaps to call them pleadings would be overstating it) Mr Copel offered to provide particulars at any rate of his Respondent's case. I think he was expecting that would be done only after the Secretary of State had indicated what views the Secretary of State was likely to come forward with on justification but it seems to me that if I adjourn the question of justification generally I can adjourn also with propriety the question of what particulars, if any, need to be given by individual company Respondents on the issue of justification.
12. So far as concerns consolidation, no-one suggests that it is necessary formally to consolidate all the cases but I direct that they all come on to be heard together. It is to be hoped that representation on the Respondent side is further shrunk because otherwise it will simply be people adopting each others argument and not adding and that, of course, would waste time and money. So I invite the parties further to consider the diminution of representation on the Respondent side but, given that one does not have costs following the event in the same way as one might have in the High Court, it does not have quite the costs aspects that it would have in the High Court. I simply ask parties to consider it and leave it at that.
13. I have been asked to bear in mind that objective justification is something of a political question and that it could be that the Employment Appeal Tribunal lay members have taken views one side or another on the issue. However, if objective justification is adjourned generally, as I have indicated, that matter can be dealt with only after the disparate impact judgment has been given.