Appeal No.	 EAT/159/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 June 1998
Judgment delivered on 16 September 1999

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR K M HACK JP
MR S M SPRINGER MBE

MR M NEDD	APPELLANT

WESTMINSTER COUNCIL 
& QUEENS PARK PRIMARY SCHOOL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS H MOUNTFIELD
(of Counsel)
Instructed By:
Graham Clayton
Solicitor
Hamilton House
Mabledon Place
London WC1 9BD
	
For the Respondents	MR T KERR
(of Counsel)
Westminster City Council
Legal Department
PO Box 240
Westminster City Hall
64 Victoria Street
London SW1 6QP	

	MR JUSTICE MORISON:	The issue for determination at the present time is whether the Employment Appeal Tribunal should list this appeal for hearing before the final determination of the Seymour-Smith litigation.  

1	Mr Nedd was employed by the First Respondent, Westminster City Council, to work as a music teacher at Queens Park Primary School, the Second Respondent.  He had two fixed term contracts which ran consecutively but his employment was not renewed on the termination of the second.  As a result he had less than two years continuous service.  The reason for his dismissal was that the Appellant was blind and it was said that he had to have another music teacher present while he was teaching.  It was said that it was no longer economically feasible for that state of affairs to continue.  

2	The Employment Tribunal decided that the case should be determined in accordance with domestic law as it presently stood.  Accordingly, Mr Nedd’s complaint was dismissed.  Mr Nedd appeals contending that the statutory requirement that he should have at least two years continuous service was unlawful in the sense that it was in breach of the United Kingdom’s obligations under the treaty of Rome since the two year time limit was unlawfully discriminatory as between men and women.  The European Court of Justice ruled on the matter and the case of Seymour-Smith is to be further considered by the House of Lords in the near future.  If the two-year time limit is held to be unlawfully discriminatory then a further question will arise as to the effect of that conclusion.  This is not the occasion to go into the arguments, which are well known.  

3	The uncertainty surrounding the Seymour-Smith litigation has caused immense administrative difficulties both for the Employment Tribunal and the Employment Appeal Tribunal.  The practice and procedure adopted by the Employment Appeal Tribunal is to stay all those appeals which raise what can be described as the Seymour-Smith issue pending determination of the matter first by the European Court of Justice and now by the House of Lords.  Accordingly, in accordance with that practice, Mr Nedd’s appeal was stayed.  The Respondents were discontent seeking to argue that the Tribunal was right to have said that the issues between the parties should be determined in accordance with domestic law.  Therefore the appeal was concerned with the question of whether the appeal itself should be stayed.  

4	It seems to us that the Respondent’s application was misconceived.  Mr Nedd would wish to raise in argument all those arguments raised in the Seymour-Smith case.  It would plainly not be possible for the Employment Appeal Tribunal to say that those arguments were hopeless or misconceived and they would technically therefore have to refer the matter to the European Court of Justice for its determination.  Of course, that would be an unnecessary step bearing in mind that Seymour-Smith has been referred to the European Court of Justice.  Thus, to deal with this appeal otherwise than by a stay would cause the Employment Appeal Tribunal to make a further reference to Europe.  This was put to Mr Kerr of Counsel in argument.  Although he maintained his position, it seemed to us that it became quite clear from questions and answers during the course of the argument that the Respondents’ position was untenable.  

5	Until the House of Lords has made a determination, it would not be sensible, practical or convenient for cases which raise the Seymour-Smith points to be heard and determined by this Court.  The only result of the Court taking a view on the matter would lead to further litigation in the Court of Appeal which we anticipate itself would wish to stay the issues until after the House of Lords had ruled upon them.  Accordingly, the Respondent’s application to unstay the appeal proceedings in this case should be dismissed.