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
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
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 House of Lords as being unlawful on the
grounds of sex discrimination.
Their lordships disagreed about whether the percentage differential between
the impact on men as opposed to women was "considerably smaller". All
the judges agreed that the gap, which was in the region of 8 to 9 per cent, was
a figure in the borderline territory. Although a majority of the judges held
that the figure was too high, they said the rule was objectively justified by
the Government’s wish to encourage recruitment by employers.
Many may be surprised by the latitude given to governments, but no doubt
administrators would be encouraged by the statement by one of the judges that
"governments must be allowed to govern".
Two other points should be noted about this case. The first is that the
effect of a rule on men and women may be treated as discriminatory if it is
persistent and relatively constant over a long period. One should not judge
situations purely on a percentage differential at any particular point in time.
Second, what should one do about all of those cases which are now
"parked" in employment tribunals. The answer is that you do not need
to do anything. Employment tribunals are now writing to applicants indicating
the outcome of the Seymour Smith cases and seeking reasons why the pending case
should not be struck out.
Obviously some cases are composed of more than one element but those which
are wholly dependent on the outcome of Seymour Smith will, in due course, be
Justifying disability discrimination
The same judge we praised above has also given guidance on the appropriate
stand by which disability discrimination cases should be judged.
In Heinz v Kenrick, he held that an employer does not need to know an
individual has a disability to be said to have acted for a reason that relates
to the disability.
What the judge takes with one hand he gives with the other, because he went
on to say that while lack of knowledge does not mean an employer did not act
for a disability-related reason, it can be very important to determine if the
employer has a defence for what he has done and that the threshold for
establishing the defence of justification – that is, "If, but only if, the
reason for it is both material to the circumstances of the particular case and
substantial" is "very low".
This judge is clearly a stickler for the rules. His comment on his view of
the law was "the remedy for the lowness of the threshold, if any is
required, lies in the hands of the legislation, not of the court".