R v Secretary of State for Employment ex parte Seymour-Smith and Perez (House of Lords 17th February 2000)
The long running Seymour-Smith case has now finally reached the end of the road. As previously reported in Issues 2, 26 and 32 of LELR, the Applicants in R v Secretary of State for Employment ex parte Seymour-Smith, were seeking to establish that the requirement for employees to have two years' service before being able to proceed with an unfair dismissal claim indirectly discriminated against women, on the basis that statistically women tended to have shorter periods of service than men.
We now have the House of Lords decision (17 February 2000). As expected, it finds against the Applicants. Although the Lords do conclude that the two year service rule had more of an impact on women than men ( for every 10 men who qualified, only 9 women did), nonetheless they find that the Government were justified in introducing a two year service rule and that their defence was therefore made out. The rationale advanced by the Government for their defence was that a two year service requirement would encourage employers, particularly small businesses, to take on more employees.
Whilst this case was on going, there have been many Tribunal applications lodged for employees with less than two year's service. The House of Lords decision now means that for people dismissed in 1991 ( when Ms Seymour-Smith was dismissed), the two year service qualification was lawful. The many Tribunal cases that have since been lodged have dates of dismissal dating after 1991. However the statistics show that the impact of the two year service requirement has increasingly affected a smaller proportion of women in comparison to men. According to the Labour Force Surveys of 1992 to 1998, the proportion of women affected in comparison with men has decreased steadily, so that by 1998 for every 20 men who qualified, so did 19 women. Given that the House of Lords decided that the 1991 figures were borderline, it is most unlikely that the later figures could be shown to indicate adverse impact against women.
Our advice therefore is that the unfair dismissal cases lodged for employees with only one year's service, and which have been stayed pending the outcome of the Seymour-Smith case, are on balance unlikely to succeed, and should be withdrawn, with the member's consent. Tribunals may start to strike out Seymour-Smith claims quickly, so members should be advised as soon as possible.
Where claims have been lodged for unfair dismissal as well as other claims where no qualifying period is required, such as breach of contract or race discrimination, only the ordinary unfair dismissal part of the case should be withdrawn.
In relation to dismissals on or after 1 June 1999, the law has of course now changed. As a result of changes to the law introduced by this Government, as from 1 June 1999, the service requirement has in any event been reduced from two years to one.