Peter Cooke is a partner in the employment department at Theodore Goddard.
What period of employment is needed to make an unfair dismissal complaint? And who decides that question?
These are two simple questions but so far they have occupied the courts since 1991.
The latest round was decided by the House of Lords, on appeal from the Divisional Court via the Court of Appeal (in R v Secretary of State ex parte Seymour-Smith and anor), on 13 March. So at least that is the end of it.
Well, not exactly. The circus now trundles off to the European Court of Justice to be mulled over for another year or two. Then back to the House of Lords. If Ms Seymour-Smith and Ms Perez, supported by the Equal Opportunities Commission, are shown to have been correct (that a 1985 Order, increasing the qualifying period from one year to two, is incompatible with EU law), they might have their cases heard by an industrial tribunal sometime in 2000 or 2001 – perhaps.
This is a series of cases which the House of Lords has decided should have been pursued at an industrial tribunal in the first place – the second simple question which has taken almost six years to decide.
There must be a better, or at least a quicker, way of resolving such things, not only for the two women who have lent their names to a saga set to rival Jarndyce v Jarndyce, but also for everyone else – employers and employees – involved in cases stretching back for years, none of which can be decided until this appeal is finally resolved.
Of course there are serious constitutional questions to be debated about the relationship between our pre-1973 legal system and the (still) incoming tide of European law.
Personally, I do not consider that whether the unfair dismissal qualifying period should be one or two years is one of them.
Even if it is (I might be wrong) there must be more time- and cost-effective ways of resolving such points – perhaps a specialist committee of UK judges to whom any question of EU law is referred for onward transmission to Luxembourg if considered appropriate. Or some leapfrog procedure that short-circuits the four rounds (and ECJ sidebar) in which parties to straightforward disputes can otherwise innocently be engulfed.
If justice delayed is justice denied, then Seymour-Smith, whatever the result, is the ultimate denial of justice.