Stephen Levinson, head of the employment and pensions department of City law firm Paisner & Co, gives his view of some topical issues
On the whole, judges are peaceable folk. When they disagree with each other, they don't usually come to blows. But such an occasion arose recently.
As you may recall in Haddon v Van den Foods, Mr Justice Morrison attacked the "band of reasonable responses" test in unfair dismissal cases. This is the test that enables tribunals to take into account that in a given set of circumstances one employer may dismiss where another equally reasonable employer may not.
The learned judge decided this was a dangerous test which led to matters being judged by extreme cases at either end of the range of responses. He urged tribunals to ignore the band and apply the strict wording of the statute.
The president of the Appeal Tribunal in Scotland joined the argument and said he too agreed with Mr Justice Morrison. Then the president of employment tribunals got in on the act, reminding all tribunal chairmen of the Haddon decision.
All this looks rather gloomy for employers as it increases the chances of dismissals being found to be unfair.
The situation arose after the appointment of a new president of the Employment Appeal Tribunal in England and Wales. In Midland Bank v Madden, Mr Justice Lindsay drew the attention of the other three judicial gents to something they appeared to have conveniently ignored, which was the doctrine of precedent: if a higher court says something is so, it is not for the lower courts to ignore it.
Mr Justice Lindsay came to the conclusion that so many decisions of the Court of Appeal had endorsed and approved the band of reasonable responses test that it is no business of any EAT chairman to encourage others to ignore it.
Not only did Mr Justice Lindsay consider Haddon wrong to encourage tribunals to ignore the test, but he himself referred to it as "determinative".
The battle is clearly not over but many will find it encouraging that at least one judge has had the courage to put legal rectitude above political correctness.
The long-running saga of this 10-year litigation has at last come to an end. As many will be aware, the old two-year qualification period to bring a claim for unfair dismissal was upheld by the Ho