Appeal No. EAT/634/96
	                    and Others

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 October 2000

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MRS J M MATTHIAS
MR G H WRIGHT MBE

EAT/634/96/RN

MR A LEWIS 	APPELANT

AIRFLOW STREAMLINES PLC	RESPONDENT

EAT/830/96/RN

MR N GODFREY 	APPELANT

CONCARGO LTD	RESPONDENT

EAT/905/96/RN

MR T DUNWELL 	APPELANT

CLARKES CRANKSHAFT LTD	RESPONDENT

EAT/906/96/RN

MR D BEESON 	APPELANT

CLARKES CRANKSHAFT LTD	RESPONDENT

EAT/1013/96/RN

MR T GRANT 	APPELANT

A P PRECISION HYDRAULICS LTD	RESPONDENT

EAT/1080/96/RN

MR A J CRAIG 	APPELANT

ROSE BEARINGS LTD	RESPONDENT

EAT/1169/96/RN

MR AULAQI 	APPELANT

GUEST & CHRIMES LTD	RESPONDENT

EAT/1214/96/RN

MR D HORTON 	APPELANT

SPECIALIST HEAT EXCHANGERS LTD	RESPONDENT

EAT/1379/96/RN

MR T ANDREWS 	APPELANT

MARLEY FLOORS LTD	RESPONDENT

EAT/96/97/RN

MR W BAKER 	APPELANT

GLOBAL MARINE DRILLING	RESPONDENT

EAT/176/97/RN

MR G MANLEY 	APPELANT

CHESTERFELT LTD 	RESPONDENT

EAT/280/97/RN

MR W FINNEY 	APPELANT

HILLSYDE FOUNDRYLTD	RESPONDENT

EAT/365/97/RN

MRS D LINGARD 	APPELANT

ROSE BEARINGS LTD	RESPONDENT

EAT/436/97/RN

MR I CUTHBERT 	APPELANT

A M PACKAGING LTD T/A AMP ROSE	RESPONDENT

EAT/586/97/RN

MR C MACDONALD 	APPELANT

OPTICAL FIBRES	RESPONDENT

EAT/958/97/RN

MR D HOLMES & MR T BONE 	APPELANT

PACCAR UK LTD t/a FODEN TRUCKS	RESPONDENT

EAT/1264/97/RN

MR R HODDER 	APPELANT

THE BERKELEY LEISURE GROUP LTD	RESPONDENT

EAT/357/98/RN

MRS H WILLIAMS 	APPELANT

PLESSEY SEMICONDUCTORS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARINGS EX-PARTE

	APPEARANCES

For the Appellants	MR BRUCE CARR
(of Counsel)
Instructed by:
Messrs Rowley Ashworth
Solicitors
247 The Broadway
Wimbledon
London SW19 ISE	

THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)

1	We have before us some 18 preliminary hearings. The first named is Lewis -v- Airflow Streamlines PLC.  In each case there is a different Appellant and a different Respondent, although that is not to suggest that there are 18 different Respondents because in some instances a Respondent is a Respondent to more than one case.  

2	In each case the issue is whether, in the light of the House of Lords Decision in Seymour-Smith (No. 2) [2000] ICR 244 , there is an arguable point of law as to whether the two year qualification period in unfair dismissal cases ought properly to be disapplied, by reason of Article 141 of the Treaty, with respect to dismissals that occurred in the years 1995 to 1997.  

3	Every case before us is one of unfair dismissal: the dismissals in question span the period from June 1995 to July 1997 and the hearings at the Employment Tribunal span the period April 1996 to December 1997.  Today, Mr Bruce Carr has appeared for all Appellants, but, of course, it is an ex-parte hearing and hence none of the 18 or fewer Respondents has appeared.  

4	We have heard Mr Carr briefly and have explained that we see it as more convenient that, before the matter goes greatly further, there should be an inter partes directions hearing.  Mr Carr does not oppose that, and as I apprehend, sees the force of the points that we think are desirable to be dealt with.  They are these: first of all, it would obviously be inconvenient to have a great number of Respondents and it would be better if the Respondents could ally themselves so as to decrease the number of arguing parties if at all possible; each Respondent is entitled to appear separately, if it wishes, but obviously it will be convenient that the number should be reduced.  That is one point that needs to be thought about. 

5	Mr Carr draws attention to the fact that there is known to be another case raising a similar or identical point of law - and he has given the reference to it, - Burrell, Reference Number 271/98 - that has already been directed to go to a full hearing and it would be convenient if the Employment Appeal Tribunal could arrange this batch of 18 cases, so it and they should march together, if it is at all possible.  

6	Another point is this: as with any appeal on a point of law, it is likely to become material to know quite what evidence, if any, was led below.  In a few of the cases statistics are mentioned and in some cases the particular statistics introduced below are identified, but in many cases they are not - and, indeed, in one case the Tribunal’s decision states that there was no evidence - although the Notice of Appeal tends to counter that.  It would be desirable if the parties could either agree what statistical or other relevant material was laid before the Employment Tribunals in each case, or to see, alternatively, if it could be agreed that it would be just to treat the appeals as if, in each case, such and such evidence had been introduced below.  That is a point that obviously needs consideration by the Respondents in conjunction with the Appellants. It may be that directions would need to be given on such a subject even if agreement was reached, so an inter partes directions hearing should help to establish quite what evidence was given below, and on what basis of evidence the cases should proceed, if they do proceed.  

7	Another point that needs to be dealt with at a directions hearing is whether any party wishes to apply for the introduction at the Employment Appeal Tribunal level of evidence which was not given below.  Where one has statistical evidence relating to a series of years, it may be that one party or another will wish to see how a trend in the figures one way or another was either continued or reversed and it may be that an application would be made by some party to introduce evidence of a statistical nature relating to periods earlier or later than the periods put in evidence below.  Again, an inter partes directions hearing would seem to be the appropriate way of dealing with any such application.  

8	Next, a troubling point is this: let it be assumed in Mr Carr’s favour that on the statistical evidence that was adduced below that the two year requirement could be shown to represent indirect sex discrimination in the years with which he is concerned.  Well, it would then be necessary to examine whether the requirement of the two year period was justified by objective factors unrelated to any discrimination based on sex.  But it would be quite unfair to expect the individual employers concerned as Respondents in this batch of cases (some of them, one would think, are not in a very great way of business) to be able to know of, still less to prove the existence and weight of, such objective factors.  The Employment Appeal Tribunal has power to join a party to an appeal - Employment Appeal Tribunal Rule 18.  In Seymour-Smith the Secretary of State for Employment was a party and, as Lord Nicholls held:

“On balance ….. discharged the burden of showing his view was reasonable”
and
“discharged the burden of showing that the 1985 Order was still objectively justified in 1991”

9	We direct the Appellants’ solicitors, as soon as practicable, to send a full set of the papers, including a copy of the transcript of this judgment, to the Secretary of State for Employment asking him whether he wishes to be joined as a party to the appeal, and if so, whether he would wish to apply for the reception by the Employment Appeal Tribunal on the appeal of any evidence which had not been put in below.  Again, that can be dealt with at an inter partes directions hearing.

10	I would hope that at the inter partes directions hearings all appropriate directions could be dealt with and all procedural difficulties sufficiently foreseen  so that the matter could then be either sent off to a preliminary hearing or, as is not improbable, then directed to go straight to a full hearing of the Employment Appeal Tribunal. All that lies in the future, but, for the moment, all we do is direct an inter partes directions hearing to take place, as soon as practicable and for the Appellants’ solicitors to write to the Secretary of State for Employment in the manner that we have indicated with a view to the directions hearing settling all procedural difficulties that can be foreseen and with a view, then, to the matter being tested first as to whether an arguable point appears and if it does, then, of course, arrangements will need to be made for a full hearing.