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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bari v ASPEN Window Group [2001] EWCA Civ 1622 (29 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1622.html Cite as: [2001] EWCA Civ 1622

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IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM
THE EMPLOYMENT APPEAL TRIBUNAL

		The Royal Courts of Justice The Strand London Monday 29 October 2001

Monday 29 October 2001

JUDGMENT
1. LORD JUSTICE KEENE: The applicant seeks permission to appeal again the decision of the Employment Appeal Tribunal, made on 1 December 2000, whereby it dismissed an appeal by him against the decision of an Employment Tribunal sitting at Stratford in East London.
2. The applicant had worked for the respondents for just one week in August 1999 as a telesales person. He brought a number of claims against them, most of which I do not need to touch on for present purposes. But one of his claims was for unfair dismissal, in the sense of ordinary dismissal not associated with any extra protected status.
3. Before the Employment Tribunal the issue inevitably arose of section 108(1) of the Employment Rights Act 1996 which provides, in effect, that the right not to be unfairly dismissed does not apply unless the employee has been continuously employed for a period of not less than one year. On the face of that subsection, this applicant did not qualify for protection against unfair dismissal.
4. But Mr Bari argued that that provision was unlawful, because it indirectly discriminated against women. He relied upon the decision of the House of Lords in the R v Secretary of State ex parte Seymour Smith [2000] IRLR 263, at which time the minimum qualifying period of employment was two years. The applicant provided the Employment Tribunal with statistics from the Labour Force Survey ("LFS"), running from 1985-1996, which showed a gap between the percentage of the male and female labour workforce able to meet a one-year continuous employment criterion, and he went on to provide an extrapolation of the figures for the years 1997-1999.
5. The Employment Tribunal stated in its judgment that it accepted the LFS figures provided by the applicant, but they rejected the extrapolation as the figures showed a sudden unexplained increase in the gap in 1997; that being the gap, as I have indicated, between the male and female proportions employed for more than a year. The Employment Tribunal examined the gap from 1990 to 1996 and noted that it had fallen each year. It held that, on the balance of probabilities, the trend would have continued through to 1999, by which time the gap would have disappeared. Consequently the Employment Tribunal concluded that the applicant had failed to show that there was any disparate adverse impact by 1999, when the regulations which reduced the qualifying period came into force, and when the applicant was dismissed. Therefore, the applicant's argument failed. He had failed to show that he had been continuously employed for the requisite minimum period. The Tribunal noted that, had it considered that there might have been a considerable adverse disparate impact in 1999, it had intended to adjourn matters so that the Secretary of State could be put on notice in respect of the statistics and the issue of justifiability.
6. At his appeal to the Employment Appeal Tribunal the applicant sought to introduce statistics compiled by the LFS showing that in fact the gap had actually increased between 1996 and 1999, and he stated that he had been unable to obtain those statistics before the hearing before the Employment Tribunal on 16 May 2000. At a preliminary hearing, the Employment Appeal Tribunal declined to give permission to introduce the new material, though without spelling out the reasons for so declining, save, by implication, that the fresh evidence was not very extensive.
7. The Employment Appeal Tribunal had, of course, a discretion as to whether or not to admit the new evidence. It is not easy to see how it approached the exercise of this discretion, and on what basis it concluded that the new evidence failed to meet the tests suggested in Ladd v Marshall [1954] 1 WLR 1489. There was evidence from the applicant that he had tried to obtain the evidence for the years 1996-1999 before the date of the Employment Tribunal hearing, but without success. It seems to have taken some considerable effort on his part to obtain the data by the time of the Employment Appeal Tribunal hearing. There is no suggestion that data from the LFS is not credible and, on the face of the figures, they seem to show that the gap between the proportions of men and women meeting the one-year threshold increased between 1996 and 1999, rather than decreasing as the Employment Tribunal had assumed. So, on the face of it, the fresh evidence could have had a material effect upon the Employment Tribunal's decision.
8. It seems to me that it is clearly arguable that the Employment Appeal Tribunal exercised its discretion on an improper basis when it refused to admit this evidence. I make it clear that I reach that conclusion with some reluctance, since the amount in dispute in this case must be very limited and has no doubt already been exceeded by the costs incurred by both sides. Nonetheless I do conclude that permission to appeal should be granted on this ground, a ground which appears at the second paragraph in section 7 of the appellant's notice.
9. A number of other grounds are raised by that notice. None of them have any merit, and this morning Mr Bari senior, who has appeared on the applicant's behalf with my permission, has not sought to press them. In those circumstances, I need not take time in dealing with the merits of those other grounds.
10. I therefore grant permission to appeal, but limited to the ground which challenges the refusal to admit the fresh evidence. Permission to appeal is refused on all the other grounds.
11. I would finally urge the parties to consider whether this matter need be taken further, with all the attendant costs involved. If the appeal is pursued, then this is a matter which can be dealt with by two Lords Justices. I would suggest a time estimate of one and half hours. It can appropriately go into the short warned list.
ORDER: Application allowed on the refusal to admit fresh evidence only. To be heard by two Lords Justices, and placed in the short warned list. (Order not part of approved judgment)