Elaine Aarons takes a closer look at unfair dismissal rights

Elaine Aarons

Press reports on the Court of Appeal's decision in the case of ex-parte Seymour-Smith and Perez have greatly exaggerated its effect. The impression is that all employees dismissed in the past, who have been employed for less than two years at the time they were dismissed, have a right to claim retrospectively for unfair dismissal.

However, the case has only established that the two-year qualifying period for claiming unfair dismissal was discriminatory in 1991 as women then were less likely than men to hold a position for more than two years. The Court of Appeal indicated that statistics relating to a different period may find the two-year qualifying period does not discriminate against women.

The case was decided on the basis of the Equal Treatment Directive which means that its impact is different for public and private sectors. Public sector employees and those employed by "emanations of the state" can rely on the direct effect of the directive.

They would still have to argue that they are entitled to bring a claim notwithstanding that the three-month time limit for claiming unfair dismissal had expired. If they succeeded in that argument (Biggs v Somerset County Council July 1995 is against them) they would have to prove that at the time of their dismissal the qualifying period for claiming unfair dismissal was discriminatory against women.

Employees in the private sector will not have any rights against their ex-employers until the Government introduces new legislation. They can currently only seek remedies against the Government by pursuing Francovich claims. Arguments were put in Seymour-Smith that the two-year qualifying period is discriminatory on the basis of Article 119 of the Treaty of Rome. This argument did not succeed but if appealed successfully would give private sector employees the same rights against their employers as those in the public sector but with the same difficulties.

Seymour-Smith is almost certain to be appealed to the House of Lords and reference to the European Court of Justice is also likely, so uncertainty in this area will hang over employers for some time.

As a result, some firms are treating such employees as if they have the right to claim unfair dismissal. That is correct advice for public sector employers but such a reaction to the Seymour-Smith case will often not be commercial in the private sector. There are so many uncertainties as to the effect of the case. Employers may prefer to take a robust view regarding their employees rights and as things stand that is a justifiable stance.

Elaine Aarons is head of the employment department at Eversheds, London.

Admissibility issue to Lords

The House of Lords is to consider the case of George Christou, convicted of five counts of indecent assault and jailed for three-and-a-half years. The certified point of law at issue is: "Where an accused is charged with sexual offences against more than one person and the evidence of one complainant is not so related to that of the other complainants as to render it admissible on the charges concerning those other complainants in accordance with principles laid down in DPP v P (1991) 2AC 447, has the trial judge a discretion to order that all charges should be tried together, having regard to the provisions of section 4 of the Indictments Act 1915 (as amended) and Rule 9 of the Indictment Rules?"