Appeal No.	EAT/1054/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 November 2000

Before
THE HONOURABLE LORD JOHNSTON
MR J R CROSBY
LORD DAVIES OF COITY CBE

ROTHERHAM REBORING SERVICE LTD	APPELLANTS

MR R MAYCOCK	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellants	DANIEL BARNETT
(of Counsel)
Messrs Irwin Mitchell 
Solicitors
St Peter's House
Hartshead
Sheffield
S1 2EL	

	LORD JOHNSTON:		This is a preliminary hearing in the appeal at the instance of the employer in respect of in essence a number of decisions relating to various issues that were canvassed before the Employment Tribunal and had led in fact to at least three decisions of it.

1.	The general issue raised relates to age and the application of section 119 of the Employment Rights Act 1996 to the particular facts of this case in relation to people who under the age of 65 and over the age of 65.

2.	Mr Barnett who appeared for the appellants addressing us on his Notice of Appeal abandoned or did not insist in paragraphs 6.1, 6.2 and 6.2.1, however he insisted upon paragraphs 6.2.2, 6.2.3 and 7. 

3.	In essence, these grounds of appeal raise, firstly, the question of what test is to be applied in selecting comparators in as much that the tribunal below have contrasted the number of men and women who worked beyond the age of 65 to discuss the question of proportional impact or lack of it. He maintained the correct test is to compare the proportion of working men who may qualify with those who may not and thereafter effect the same exercise with regard to women, and finally compare the proportions. He directed us to the latest decision of the House of Lords in Regina v Secretary of State for Employment ex parte Seymour-Smith and Perez (No.2) [2000] IRLR 263, and particularly to the speech of Lord Nicholls of Birkenhead, where in paragraph 61 his Lordship expressly leaves open the question Mr Barnett is seeking to raise before this tribunal. It is clear from the briefest of study of the decision below that the tribunal did not address this particular issue as an alternative of the test to be applied.

4.	That alone is sufficient in our minds to raise an issue of law which requires to be considered by a full hearing of this tribunal. 

5.	However, it must be recorded that in terms of paragraph 6.2.3 Mr Barnett also maintained that the tribunal had erred by lifting statistics from another case to which reference was made namely Nash v Mash/Roe [1998] IRLR 169. He maintains that it was a mistake of law even to do that exercise in principle and also leading to an unfair result in as much that his clients had been denied the opportunity to cross-examine the source of the statistics in the other case, a Professor Elias. Furthermore, he maintained, in any event it was not necessarily reasonable to make the assumption which the tribunal had done, that the statistics that applied in 1998 would necessarily apply in 1999, after the decision in Nash v Mash/Roe had been announced, which he maintained could have a proportional reaction on the statistics.

6.	In our opinion, there is also considerable force in this point to the extent that it requires to be considered by a full tribunal.

7.	Thirdly, and quite separately, he brought a separate ground of appeal to the effect that the tribunal had erred in law in calculating the compensation award by not taking into account that the actual potential working history of the respondent after the dismissal.

8.	For these reasons and without taking the matter any further, we consider that this case is appropriate for a full hearing and we will so order.

9.	Mr Barnett requested that we order the production of the Chairman’s Notes of Evidence on a limited basis with regard to the last ground of appeal, namely in relation to compensation under particular reference to the notes of cross-examination of the respondent on the issue of the number of hours he worked for other employers after his dismissal. We shall so order.

10.	Having done that we were informed that there is another case pending with separate parties raising the same issue and he requested that we stay this case pending the resolution of that case, whenever that may be and we are also prepared to do that. A stay is therefore granted.