The waiting is nearly over. The Advocate General has delivered his opinion on Seymour-Smith and the judgment of the European Court of Justice is likely to follow shortly which is likely to confirm the Advocate General's views.

The essential issue is does the two year qualifying period for unfair dismissal claims in the United Kingdom unlawfully discriminate against women? The AG's short answer is 'no'.

Assuming the ECJ's judgment follows the Opinion (which it usually does), the two year qualifying period will be valid. It is likely to mean therefore that most of the Seymour-Smith cases currently stayed in tribunal's and in the Employment Appeal Tribunal will be dismissed if they are not withdrawn.

But, the AG appears to consider that protection from dismissal on grounds of sex should be covered in the unfair dismissal legislation - now the Employment Rights Act 1996. He considers the UK Government has defectively implemented the Equal Treatment Directive and individuals (male or female) who are dismissed on grounds of sex with less than two year's service have the right to have their cases treated as unfair dismissal claims.

Direct Effect

The AG considers individuals can rely directly on this right, whether or not they are employed by emanations of the State or private employers. All employees can rely directly upon the Directive because of the defective implementation which therefore gives direct effect to all employees.

Sex Discrimination

It is unclear whether this will make much difference in practice. At present employees dismissed because of their sex short of the qualifying period use the Sex Discrimination Act to gain compensation. They cannot however use unfair dismissal provisions and therefore seek the remedy of reinstatement, re-engagement or the basic award.

The AG has not considered the interplay of dismissal being classified as a detriment in the Sex Discrimination Act 1975, and the protection in the Employment Rights Act for unfair dismissal. He appears to be saying that dismissal on grounds of sex should be treated as automatically unfair dismissal in the same manner as dismissal relating to, for example, pregnancy or trade union activities.

It is an interesting question whether Applicants are sufficiently protected under the Sex Discrimination Act now that the ceiling on compensation has been lifted, or whether they should be entitled, as well, to the option of reinstatement or re-engagement where the Applicant has been dismissed. Marshall v Southampton and South West Hampshire Area Health Authority (No 2) [1993] IRLR 445 ECJ suggested that reinstatement was not necessary where financial compensation would adequately compensate.

From now on where Applicants with less than two years service are arguing discrimination in dismissal, unfair dismissal should be added as a complaint in both box 1 and box 11 of the IT1 if reinstatement or re-engagement is sought. The AG's 40 page opinion also reviews much of recent case law in the field of discrimination and answers a number of other questions referred in Seymour-Smith to the European Court of Justice.

Compensation is 'Pay'

The AG's view is that unfair dismissal compensation comes within the definition of pay under Article 119 of the Treaty of Rome which was to be expected. However he draws the line between the compensation and the conditions determining access, or potential access, to the compensation. His view is that it is only where there is a practically automatic link between working conditions and pay, that the working conditions themselves would come within Article 119. For example where promotion is practically automatic after a certain length of seniority which applies only to full timers, a part time worker's complaint would come within Article 119, rather than the Equal Treatment Directive.

In the case of the qualifying period for unfair dismissal, the link is not so strong, he says. The fact that certain working conditions have financial consequences does not necessarily mean that Article 119 applies. The qualifying period falls under the Equal Treatment Directive, he says.

Although not relevant in this case, it is worth bearing in mind that in the United Kingdom, the position may be more complex. Our Equal Pay Act covers all terms and conditions of employment, not just pay, and is therefore wider than Article 119 in relation to contractual terms.

But the Advocate General's opinion is that the two year service rule does not introduce a distinction and therefore discrimination between men and women - either by its nature or its results. It will only be where there is discrimination in the dismissal: either direct or indirect that that two year limit can be disapplied.

Indirect Discrimination

The European Court of Justice has also been asked about the legal test of disparate impact in order to establish indirect discrimination. In view of the Advocate General's opinion of the case, given his conclusions these questions are irrelevant but, he nonetheless addresses all the questions raised in the reference.

How disparate does the impact have to be? The Advocate General declines to lay down a more precise test than the previous comments of the Court which require 'considerably higher', or 'a significant difference'. His personal opinion is the statistical difference demonstrated on the figures on Seymour-Smith is not sufficient to justify a finding of unequal treatment on grounds of sex, but it will be a question of fact for the national court.

But in passages which may have far reaching consequences, he sets out stringent requirements for proving indirect discrimination. Statistics, he says, are not enough and objective factors need to be shown.

He gives no examples of what 'objective factors' he has in mind. It is hard to see how this will translate in practice. Indirect discrimination is, by its very nature, hidden and it is necessary to look at outcomes, such as are demonstrated by statistics.


The AG states that you need both objective and numerical factors alike and statistics must be both adequate and significant. He did not believe the right statistics had been relied on in this case. He wanted to see both the percentages of men and women with less than two years employment at the time and, secondly, the percentages of men and women who were dismissed during the same period.

Only if the percentage of women dismissed was considerably greater than the corresponding percentage of men dismissed in relation to the percentage of women and men with less than two years employment can there, in principle, he said, be a question of indirect discrimination against women. What evidence will be required in any particular case, will remain a question of fact for determination by the national court.


More reassuringly, the AG affirms the Bilka-Kaufhaus test of objective justification which he considers to be settled law. Objective justification requires the measure to be necessary, appropriate and proportionate to the aim pursued and generalisations and abstract considerations of social policy cannot amount to justification. The then UK Government had failed to make out objective justification in Seymour-Smith he said.
It remains to be seen whether the European Court of Justice will follow, to the letter, the AG's opinion and how much of his comments will be reflected in the Judgment.

In the meantime the fate of unfair dismissal claims lodged subsequent to Seymour-Smith look dicey indeed. More hopeful is the prospect of obtaining unfair dismissal remedies for victims of sex discrimination with less than two years service.