BARI v ASPEN WINDOW GROUP LTD [2002] EWCA Civ 1223

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF THE EMPLOYMENT APPEAL TRIBUNAL
[2002] EWCA Civ 1223Case No No A1/2000/3862Venue Royal Courts of Justice, Strand, London WC2, Thursday, 11th July 2002
Between
BARIAppellantASPEN WINDOW GROUP LTDRespondent
Before
Lord Justice KennedyLord Justice SedleyThe Applicant was not represented and did not attendMR THOMAS GRAHAM (Instructed by Lawrence Wood of Norwich) appeared on behalf of the RespondentDate 11 July 2002

LORD JUSTICE SEDLEY:

This

[1]was to have been an appeal by permission of Lord Justice Keene concerning a single, discrete but potentially important aspect of a group of claims proceeding before an Employment Tribunal. They all arise out of the abrupt termination after only one week of the job which the applicant had obtained with the respondents as a 16 year old schoolboy in August 1999.[2]In a carefully reasoned judgment an Employment Tribunal, presided over by Ms Gay at Stratford on 16th May 2000, held that while there was jurisdiction to hear the applicant's claim that he had been unfairly dismissed for asserting a statutory right and had also suffered unlawful race discrimination, there was no jurisdiction to entertain his claim for unfair dismissal on other grounds (what has been referred to here as ordinary unfair dismissal)because he had not been employed for a year by the date when he was dismissed. Since Section 108 (1) of the Employment Relations Act 1996 imposes an unequivocal bar on unfair dismissal claims by persons who have been employed for less than a year, the applicant's only hope was to invoke a superior law - that of the European Union - in order to get Section 108 disapplied by parity of reasoning with the decision of the House of Lords in R v Secretary of State for Employment ex p Seymour Smith No 2 [2000] IRLR 263.[3]The argument therefore represented a large undertaking. It involved, first, showing that there was in 1999 a degree of disparate adverse impact on one sex sufficient to offend against Article 119, as it then was. If this were prima facie established it would, as the Employment Tribunal recognised, mean joining the Secretary of State so that the question of the justifiability of the bar could be properly examined. Other questions, too, would then arise. Does the Factortame decision make it as straighforward for an Employment Tribunal to disapply primary legislation as was possible in relation to secondary legislation in the Seymour Smith case? Can a man rely on the effects of discrimination against women? What, if anything, is to replace the one year bar if it is disapplied? But present appeal concerns only the very first of these steps.[4]Before the Employment Tribunal the figures advanced by the applicant's father - who has conducted this case throughout on his behalf, and who is an accountant - ran from 1990 to 1996. They showed an initial disadvantage among women as against men in having held their jobs for a year or more, but a disadvantage that diminished steadily year on year to 1.7 percentage points in the last known year - 1996. The Employment Tribunal said in paragraph 6 of their reasons:
"The trend has been consistently downwards over these seven years. We know of no reason why it should have reversed or changed, nor does Mr Bari suggest any. The tribunal is compelled to conclude on the balance of probabilities that the trend has continued as we have observed it and that by 1998 or 1999 when it had fallen over a further two or three years by 0.83 per cent per annum the gap had entirely disappeared."
[5]On the material before it no question the Employment Tribunal's reasoning was beyond criticism.[6]When Mr Bari went to the Employment Appeal Tribunal his father had further statistics which he said he had attempted but failed to obtain in time for the Employment Tribunal hearing and which, in his contention, showed that contrary to the Employment Tribunal's expectation the gap had in fact widened again by 1999.[7]On a preliminary hearing on 1st December 2000 the Employment Appeal Tribunal presided over by Judge Altman refused to admit this further evidence and consequently refused to allow Mr Bari's appeal on this issue to proceed to a full hearing. It will not be appropriate, for reasons to which I am now going to turn, to set out the Employment Appeal Tribunal's reasoning or Lord Justice Keene's clear reasons for considering that that reasoning deserved the attention of the full court.[8]Today two developments confront us: one is that neither Mr Bari nor his father is here. We have a fax from Mr Bari junior stating that he is unwell and has no knowledge of the relevant law and that his father is unwell with angina and cannot come to represent him. He has asked for an adjournment, but the court has indicated that it is not prepared to grant it. The other reason, and a reason which is relevant to the matter I have just mentioned, is that we now have before us counsel on behalf of the respondent who has been able to give us a hidden history of which neither Lord Justice Keene nor this court, until yesterday, knew anything.[9]It emerges that a few days after the appellant had lodged the current appellant's notice with this court, that is in early December 2000, an Employment Tribunal proceeded to hear the claims which had been allowed to proceed, and on 13th December 2000 found partially for the applicant. They found that race discrimination had been established by him and they awarded him £1,000 for injury to his feelings together with £546 for loss of wages. They dismissed his claim for unfair dismissal on the ground of his assertion of a statutory right, namely the right to written terms and conditions of employment. It is clear from the decision given by the Employment Tribunal - which Mr Graham has recounted to us from its text today - that the basis of the race discrimination award was that the tribunal were satisfied that in the one week in which this young man was employed he had been subjected to racial abuse which satisfied them that at the end of the week it was because of his race that he was dismissed. It follows that the detriment which the tribunal found and which is essential to any finding of race discrimination was the detriment of being dismissed. It follows, too, that in the £546 award he was fully compensated for that dismissal.[10]In this situation there is, in my view, a short answer to the claim which the appellant still seeks to pursue in respect of his "ordinary" unfair dismissal. You can only be dismissed once on a single occasion, even if it is on more than one ground, and you can only be compensated once for it. In this case the applicant has, it is clear, already been compensated in full for his dismissal. He has also, and separately, been compensated appropriately for the indignity of the circumstances in which that dismissal occurred because it amounted to racial discrimination. It seems to me to follow that the attack on the legality in European Union law of Section 108 (1) of the 1996 Act cannot be usefully pursued because it could result in no outcome that has not already been achieved by other means by Mr Bari.[11]For this reason alone it seems to me that the present appeal should be dismissed. Had he known what we now know I do not believe that Lord Justice Keene would have granted permission to appeal in the first place.

LORD JUSTICE KENNEDY: I agree.

Order

Appeal dismissed with the costs

Cited in 1 later judgment