The case of R v Secretary of State for Employment Ex Parte Seymour-Smith and Perez has finally been referred to the European Court of Justice by the House of Lords after seven years of litigation.
It involves two women who were dismissed by their employers in 1991. Both had served less than two year's service. Their claims for unfair dismissal were rejected by the industrial tribunal. They sought judicial review of the 1985 Order which introduced the two-year qualifying period on the grounds that it indirectly discriminated against women and was contrary to the Equal Treatment Directive (ETD).
Contrary to expectations, Advocate-General Cosmas delivered his opinion on the basis that the problem is not the length of the qualifying period, but the fact that there is a qualifying period at all. The parties, he says, are "not correct" to argue the issue as one of indirect discrimination.
The qualifying period is contrary to the ETD for the "more fundamental reason" that it allows, in his view, dismissal of an employee on grounds referable to the employee's sex and then makes it almost impossible for that employee to find an effective legal remedy. As such, it is directly contrary to the ETD and unlawful.
However, the Advocate-General did consider the indirect discrimination issues raised by the House of Lords. He reviewed the statistical evidence, expressed "considerable reservations" about its adequacy and significance, and stated it did not justify a finding of unequal treatment on the grounds of sex.
It is likely that the ECJ will decline to follow the Advocate-General's view as he appears to have misunderstood both the applicants' claims and the remedies already available for discriminatory dismissals in the UK. The applicants were pursuing "ordinary" unfair dismissal claims. If their dismissals had been discriminatory the Sex Discrimination Act 1975 (which has no qualifying period) would have provided them with an effective legal remedy.
As part of the Fairness at Work programme, the Government is proposing to legislate to reduce the qualifying period to one year.