OpinionOn 1 Apr 2000 in Personnel Today Related posts:No related photos. Stephen Levinson, head of the employment and pensions department of City lawfirm Paisner & Co, gives his view of some topical issuesBrawling judges 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 attackedthe “band of reasonable responses” test in unfair dismissal cases.This is the test that enables tribunals to take into account that in a givenset of circumstances one employer may dismiss where another equally reasonableemployer may not. The learned judge decided this was a dangerous test which led to mattersbeing judged by extreme cases at either end of the range of responses. He urgedtribunals to ignore the band and apply the strict wording of the statute. The president of the Appeal Tribunal in Scotland joined the argument andsaid he too agreed with Mr Justice Morrison. Then the president of employmenttribunals got in on the act, reminding all tribunal chairmen of the Haddondecision. All this looks rather gloomy for employers as it increases the chances ofdismissals being found to be unfair. The situation arose after the appointment of a new president of theEmployment Appeal Tribunal in England and Wales. In Midland Bank v Madden, MrJustice Lindsay drew the attention of the other three judicial gents tosomething they appeared to have conveniently ignored, which was the doctrine ofprecedent: if a higher court says something is so, it is not for the lowercourts to ignore it. Mr Justice Lindsay came to the conclusion that so many decisions of theCourt of Appeal had endorsed and approved the band of reasonable responses testthat 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 tribunalsto ignore the test, but he himself referred to it as “determinative”.The battle is clearly not over but many will find it encouraging that atleast one judge has had the courage to put legal rectitude above politicalcorrectness. Seymour-Smith 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 claimfor unfair dismissal was upheld by the House of Lords as being unlawful on thegrounds of sex discrimination. Their lordships disagreed about whether the percentage differential betweenthe impact on men as opposed to women was “considerably smaller”. Allthe judges agreed that the gap, which was in the region of 8 to 9 per cent, wasa figure in the borderline territory. Although a majority of the judges heldthat the figure was too high, they said the rule was objectively justified bythe Government’s wish to encourage recruitment by employers. Many may be surprised by the latitude given to governments, but no doubtadministrators 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 theeffect of a rule on men and women may be treated as discriminatory if it ispersistent and relatively constant over a long period. One should not judgesituations 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 needto do anything. Employment tribunals are now writing to applicants indicatingthe outcome of the Seymour Smith cases and seeking reasons why the pending caseshould not be struck out. Obviously some cases are composed of more than one element but those whichare wholly dependent on the outcome of Seymour Smith will, in due course, bestruck out. Justifying disability discrimination The same judge we praised above has also given guidance on the appropriatestand by which disability discrimination cases should be judged. In Heinz v Kenrick, he held that an employer does not need to know anindividual has a disability to be said to have acted for a reason that relatesto the disability. What the judge takes with one hand he gives with the other, because he wenton to say that while lack of knowledge does not mean an employer did not actfor a disability-related reason, it can be very important to determine if theemployer has a defence for what he has done and that the threshold forestablishing the defence of justification – that is, “If, but only if, thereason for it is both material to the circumstances of the particular case andsubstantial” is “very low”. This judge is clearly a stickler for the rules. His comment on his view ofthe law was “the remedy for the lowness of the threshold, if any isrequired, lies in the hands of the legislation, not of the court”. Previous Article Next Article Comments are closed.