Andrew Cook is a solicitor at Russell Jones & Walker.
A Controversial eight-year fight to extend rights to UK workers could collapse following a recent decision by the European Court of Justice (ECJ) in the case R v the Secretary of State for Employment, ex parte Seymour-Smith.
Seymour-Smith and her co-complainant, Ms Perez, were both sacked from their jobs with different employers in May 1991, having completed 15 month's service. At that time, employees could only pursue claims for unfair dismissal where they had at least two years' service, because of the 1985 Unfair Dismissal (Variation of Qualifying Period) Order.
The applicants sought judicial review of this 1985 order, arguing that it indirectly discriminated against female employees on the basis that a "considerably smaller" percentage of women than men had the necessary two years service, and that the 1985 order could not be objectively justified.
The High Court dismissed that application in 1994, holding that the statistics did not show a disproportionate impact. In 1995, the Court of Appeal reversed the decision, holding that the 1985 Order was discriminatory.
The Government appe-aled to the House of Lords in 1996 and, after a significant delay, the matter was referred to the ECJ in March 1997. The European Court handed down its judgment on 9 February 1999.
Most of the questions referred to the ECJ have been referred back to the Lords. What is said in the judgment significantly reduces the prospects of the applicants succeeding.
Importantly, the ECJ says the statistics – that 8.5 per cent more men than women have at least two year's service in 1985 – do not show disproportionate treatment.
Given the ECJ's interpretation of the relevant statistics, the claimants seem unlikely to succeed.
During the time Seymour-Smith has been progressing through the legal system, numerous claims have been submitted to Employment Tribunals by people with less than two years' service. Since 1985, the percentage difference between male and female employees has narrowed to 4 per cent, making the prospects even bleaker.
However, the debate may ultimately be academic.
Until their Lordships make a final determination in the case, uncertainty will continue and employers and employees alike will remain unaware of their rights.