Appeal No. EAT/1200/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 February 2001

Before
MR COMMISSIONER HOWELL QC
MRS D M PALMER
MS B SWITZER

MR K HATTLEY	APPELLANT

CHELMSFORD STAR CO-OPERATIVE SOCIETY LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	APPELLANT IN PERSON	

	

MR COMMISSIONER HOWELL QC:

1.	We have all found this a most unhappy case.  The appeal before us is by Mr Kevin John Hattley and this is the Preliminary Hearing of the appeal which our task is to determine whether there was any arguable error of law in the decision of the Stratford Employment Tribunal contained in a decision with extended reasons sent to the parties on 1 August 2000 which is at pages 18 to 20 inclusive of the Appeal File before us.  

2.	The decision of the Tribunal was that a complaint of unfair dismissal made by Mr Hattley by Originating Application dated 25 January 1999 against his former employers the Chelmsford Star Co-operative Society Limited could not be entertained by the Tribunal, on the ground that as stated in Mr. Hattley’s Originating Application the period of his employment with the Co-op Society had been only from 10 March 1997 to 4 November 1998.  That is a period of less than two years before the effective date of termination of his employment on 4 November 1998 and accordingly under Section 108 of the Employment Rights Act 1996 as in force and applicable to an employment which effectively terminated before 1 June 1999, Mr Hattley’s complaint was not one to which Section 94 of the Employment Rights Act 1996 applied in view of the relatively short period of his employment.  

3.	The procedure before the Tribunal was prolonged because of the then pending proceedings in test case of R. v. Secretary of State for Employment ex parte Seymour-Smith.   This was a case brought by two women alleging that the two year qualifying period under Section 108 was discriminatory against women, because it had a disparately adverse impact on women therefore amounting to indirect discrimination contrary to Article 119 of the EC Treaty as it then was.  All proceedings involving the two-year time limit appear to have been held up at Tribunal level pending the outcome of that case, in case the result should have a bearing on the other pending proceedings, of which Mr Hattley’s application was one.  

4.	However, following the decision of the European Court of Justice and of the House of Lords in the Seymour-Smith case, Mr Hattley’s complaint was restored and determined by the Tribunal. In their Extended Reasons to which we have referred when the Tribunal unanimously held that the Tribunal did not have jurisdiction to consider the complaint of Unfair Dismissal and accordingly dismissed it because the period of employment was below the period prescribed under Section 108.  

5.	As is apparent from Mr Hattley’s Originating Application the ground on which it was based was that on 3 November 1998, he had been suspended from his employment and on 4 November 1998 his employment had been brought to an end owing to an error by some other people in the Funeral Department where he worked, for which he had been held responsible by the employers though it was not in fact his fault.  The Respondent’s answer, the relevant parts of which we have at page 23 of the Appeal file, made clear what the error was.  It was a catastrophic mistake that had been made in a funeral in which Mr Hattley as well as other operatives had been involved on the day in question, when the wrong person had been put into a coffin and taken off to a cremation service. Fortunately, the mistake was discovered after the service had been carried out but before the actual cremation itself took place.  Mr Hattley had been the person who was involved at the stage of the ceremony itself, though as he and his wife have told us the circumstances (according to the version of events that they have given us), give reason for considerable doubt whether he was rightly held responsible for the error that had been made before the ceremony took place.  At all events, according to the employers’ version of what happened, Mr Hattley’s resignation was tendered and accepted and that was the way in which his employment had come to an end.

6.	The Employment Tribunal after the deferment of the proceedings to await the outcome of the Seymour-Smith case, gave their reasons for declining to go into the merits of what had happened on that dreadful day in terms which we quote from the Extended Reason paragraphs 4 to 7 as follows.
	“4.	Mr Hattley was unable to advance any arguable basis upon which the two year qualifying period could be dis-applied in his case.  His argument amounted to no more than his strong protest against the unfairness of the system denying him the right to complain of unfair dismissal.  Nevertheless, the Tribunal considered the decision of the House of Lords in the above cited case  in order to see whether or not there might be an arguable basis on which Mr Hattley’s complaint could be heard.  

5.	It is to be observed that the Applicants in the cited case were both women.  They succeeded in showing that at the time of their dismissal, in 1991, the two year qualifying period had a disparately adverse impact on women so as to amount to indirect discrimination contrary to Article 119 of the EC treaty.  Mr Hattley was not dismissed until November 1998 and therefore the statistical information available in the cited case is of no relevance whatsoever.  To take advantage of the point, Mr Hattley must be in a position to show that in November 1998 the two years qualifying period had a disparately adverse impact on men.  No such evidence has been advanced nor, as the members of the Tribunal understand the statistical trend, could such an argument be advanced.
6.	The House of Lords went on to find that the Secretary of State had discharged the burden of showing that the extension of the qualifying period to two years made under the Unfair Dismissal (Variation of Qualifying Period) Order 1985 was justified by objective factors unrelated to any discrimination based on sex.  The House left open the question whether or not at some later date that justification would continue to apply.  

7.	Mr Hattley puts forward nothing that which could amount to any arguable basis for holding that the two year rule should not apply to him however strongly he may feel about it, it is no argument at all to protest the unfairness of such a provision “

7.	That is the decision against which Mr Hattley seeks to pursue an appeal, on the grounds set out in his notice before us dated 4 May 2000 as amplified and further explained to us by Mr Hattley himself and also his wife who helpfully addressed us on his behalf today.

8.	Mr and Mrs Hattley have both explained to us (and we have no reason to doubt, as they both appeared to us entirely straightforward and honest in the way they presented their case today) that on the day in question Mr Hattley was not employed as a Funeral Conductor, who is the person responsible for the ceremony, but only in the lower grade as a Funeral Operative being trained to be a Conductor.  However on this day he was asked by his manager, at very short notice, to take over the conduct of the funeral where this terrible mistake was made but had in fact no opportunity of himself checking the identity of the person in the coffin.  This, in the circumstances in which he was asked to take the ceremony over, should already have been done by the person from whom he took over the job.  

9.	If that was what took place on that day, (and we stress that we have not of course had an opportunity of hearing the employers’ version of events or evidence from anybody else), we can readily understand that both Mr and Mrs Hattley have a continuing feeling of unfairness that he has been made to pay what, as they have explained to us, has been a very heavy penalty for a mistake that was in fact not his.  We can also well understand that it is unsatisfactory for both of them that there has because of the provisions of the law applied here been no opportunity for the merits of the case, and the actual facts of what happened, to be gone into before any independent Tribunal.  We agree that as a matter of fact that is regrettable, because this event for which he has been held responsible has of course hung over both of them ever since.  Further, they told us that there had been no opportunity for a proper explanation to be given to a responsible person on behalf of the employers, so that some understanding of what had really gone on could be got across to them; and if that is so, that is also regrettable.

10.	This court however is concerned only on this appeal with the relatively narrow question of law whether there is any arguable ground for saying that the Tribunal in the decision to which we have referred misdirected themselves in holding that they had no jurisdiction to entertain the case.  The first point made to us by Mr Hattley was that since the time limit under Section 108 has in fact been reduced since the Seymour Smith case from two years’ employment to one, it would be unfair now for his claim not to be entertained and considered on the merits.  However as there is no doubt that the effective date of termination of his employment, whether it was by dismissal or resignation, did take place on 4 November 1998, and the reduction of the time limit from two years to one was only brought into force from 1 June 1999, we have been unable to see that there is any arguable ground which would entitle this Tribunal to interfere with the Employment Tribunal’s decision in terms of Section 108 which is the binding and applicable domestic law of the United Kingdom.  Secondly, it was said on Mr Hattley’s behalf that if that was the way the United Kingdom law worked that amounted to discrimination against him on grounds of his sex, by parallel with the arguments in the Seymour-Smith case brought by two women employees; and Mrs Hattley drew our attention to Section 2 of the Sex Discrimination Act 1975 which makes absolutely clear that the sex discrimination legislation applies equally in favour of men as it does in favour of women.  

11.	However we have been unable to see that there are any grounds here for doubting the correctness of what was said by the Employment Tribunal in paragraph 5 of the Extended Reasons to which we have referred.  Since the time limit, whether it be two years or one, applies equally to members of both sexes, there is no question of direct discrimination; and in order to get a case of indirect discrimination on its feet, one would need to show some way in which the qualifying period did in fact have a disparately adverse effect on men as compared with women.  We had nothing put before us to show that the Tribunal in any way erred in what they said in paragraph 5, which is that no evidence had been advanced before them to show that that might be the case nor, as the members of the Tribunal understood the statistical trend, could such an argument be advanced.  Therefore we are unable to see that there is any arguable point to warrant sending forward for a full hearing on the sex discrimination issue.  The third issue suggested to us was that there was some breach of human rights involved in Mr Hattley not having the opportunity either of being able to give a full explanation to his employer or of being able to have his explanation heard and evaluated by an independent Tribunal.  Mrs Hattley who presented this point did not identify which particular rights in the European Convention were allegedly infringed by the operation of the two year time limit in Section 108 in this way, and we have not been able to conclude there is any arguable point based on human rights here.  Apart from anything else, this Employment Tribunal gave its decision of 31 May 2000 in a decision sent to the parties within Extended Reasons on 1 August 2000 and both of those dates came before the introduction of the direct enforcement of Convention Rights under the Human Rights Act 1998 which was only brought into force in this country on 2 October 2000, post dating the Tribunal decision with which we are concerned. 

12.	We have therefore had to conclude that there is no arguable ground to warrant us directing that this case should go forward for a full hearing before the Employment Appeal Tribunal and we therefore have no option but to dismiss this appeal, which we unanimously do; but we do record that we have all found this an unhappy and distressing case for the reasons we have given.