R v Secretary of State for Employment, Ex Parte Seymour Smith and Another (unreported) House of Lords March 13th 1997
Is the rule requiring 2 years' service before an employee can bring a claim for unfair dismissal against the law? The House of Lords has just referred the question to the European Court of Justice for a ruling whether the 2 year rule breaches equal pay law and Article 119 of the Treaty of Rome.
The House of Lords has also struck out the decision of the Court of Appeal 1995 ICR 889 that the 2 year rule indirectly discriminated against women between 1985 and 1991 and is incompatible with the Equal Treatment Directive. The appeal court had found that the 2 year qualifying period had a considerably greater adverse impact upon women than men over that period. The Equal Treatment Directive requires that there should be no discrimination whatsoever between men and women in the employment field.
The reasoning by the House of Lords was that the declaration made by the Court of Appeal served no useful purpose. It did not enable employees to sue for unfair dismissal with less than 2 years service. Neither did it require UK law to be changed to reduce the 2 year period.
The House of Lords also pointed out that the Court of Appeal judgment only concerned the discriminatory effect of the 2 year rule between 1985 and 1991 and that the figures since then show that the gap between men and women who qualify for employment protection rights, has narrowed. They did not say whether the gap has narrowed so much as to no longer show a considerably adverse impact upon women.
It is likely to be another 2 years before a definitive ruling emerges from the European Court of Justice. What is the position in the meantime?
Most Industrial Tribunals are not prepared to wait until the final outcome of Seymour Smith. They are hearing cases for unfair dismissal brought by employees with less than 2 years service.
The cases are being dismissed on the basis of the 2 year qualifying period as it presently stands. In some cases costs are even being awarded against the Applicants bringing the cases.
The Employment Appeal Tribunal is generally taking a more liberal line and has until now agreed in most cases to delay hearing appeals against IT decisions awaiting the outcome of Seymour Smith (Street v Peacock, unreported EAT/217/96).
It is likely that Industrial Tribunals will continue to refuse to postpone Seymour Smith type cases and that there will soon be a further Judgment from the EAT to clarify the approach it intends adopting.
Meanwhile, the dilemma remains. Should employees with less than 2 years service lodge claims for unfair dismissal? The difficulty is this: until the ECJ rules, UK Industrial Tribunals are likely to continue to throw out cases relying on the law as it stands now.
But if the ECJ finds the UK Government has breached Article 119 by imposing the 2 year service requirement, individuals may have lost valuable rights if they have not brought a claim within 3 months of their dismissal.