European Court of Justice Decision in Seymour-Smith

We now have the long-awaited European Court of Justice decision in the Seymour-Smith case. Unfortunately, it is not the decisive judgement that had been hoped for, and the question of whether the two year service requirement for unfair dismissal claims indirectly discriminates against women still remains to be decided.

Ms Seymour-Smith and Ms Perez both started work with their employers in 1990. Both were dismissed in 1991, with more than one year's service, but less than two years.
Both argued that the two year service requirement which prevented them from pursuing unfair dismissal claims indirectly discriminated against women. They pointed to statistics which showed that in 1985, when the two year service requirement was introduced, only 68.9% of female employees had two years service, as opposed to 77.4% of men.

The case was unsuccessful in the High Court, where it was argued in Judicial Review Proceedings that the two year service requirement was contrary to the Equal Treatment Directive. The Court of Appeal overturned this decision, and allowed the applicants to rely on Article 119 as well as the Equal Treatment Directive. However in holding that there was indirect discrimination, they also said that it was not clear whether compensation for unfair dismissal fell within Article 119. The House of Lords, then referred the case to the European Court of Justice.

Following the controversially opaque decision of the Attorney General (reported in Issue 26 of LELR), it had been widely anticipated that the European Court of Justice would provide an authoritative answer to the questions raised in this case. However that was not to be. The Court has instead referred the three main questions back to the House of Lords, and provided very little guidance as to how the questions should be answered.

The Court was firstly asked whether compensation for unfair dismissal was "pay" within the meaning of Article 119, and whether the right not to be unfairly dismissed fell within Article 119 or the Equal Treatment Directive. The Court answers these by saying that compensation for unfair dismissal is "pay", and that an employee's claim for compensation for unfair dismissal falls within Article 119. A claim for reinstatement or re-engagement falls within the Equal Treatment Directive.

The Court re-iterated the already well-known legal test that it was for the national Court to verify whether the statistics indicated that a considerably smaller percentage of women than men meet the two year requirement. However, significantly, at this point the Court does imply in fairly clear terms that they are not convinced by the Applicant's statistics: "Such statistics [77.4% of men as opposed to 68.9% of women able to comply] do not appear, on the face of it to show that a considerably smaller percentage of women than men is able to fulfil the requirement".

The fourth question related to the time when the legal test should be applied in circumstances such as this where Applicants were maintaining that a law was discriminatory. Again the European Court simply refers the matter back to the national Court, saying that it is for them to determine the point in time in which the legality of the rule should be assessed.

Finally, they were asked what the legal conditions were for establishing objective justification of the measure adopted by a Member State. Once again, the European Court simply reaffirms the principle that it is for the Member State to show that the rule reflects a legitimate aim of its social policy, that the aim is unrelated to any sex discrimination and that the means chosen were suitable for attaining that aim.

Such bland restatements of the law, referring the key questions in this case back for determination in the House of Lords, are no doubt in keeping with the important principle of subsidiarity. However, this will be little comfort to those Applicants whose claims have been lodged and stayed in the Tribunals for several years now, pending the outcome of this case. Those Applicants will simply have to continue waiting until the House of Lords reconsiders that case, probably later this year. Meantime in the light of the European Court's discouraging comments about the inadequancies of the Applicants' statistics on the disparate impact of the two year service requirement for women and men, it is hard to be optimistic about the chances of success.