211:, giving judgment for the whole House, said that while it was clear that under the Directive, which had only "vertical direct effect" and could be enforceable only against the state, the Treaty article 119 had "horizontal direct effect" and thus created a right of enforcement between private parties. Nevertheless, as in the Court of Appeal it was unclear what the European position was on a number of points. Hence a reference was made to the European Court of Justice asking (1) whether unfair dismissal compensation was "pay" under article 119 (2) whether unfair dismissal fell within the scope of article 119 (3) what the legal test should be for establishing a disparate impact was (4) when a state's action is at issue which time is relevant between when a measure is adopted, brought into force or when an employee is dismissed, and (5) what are the criteria for objective justification?
350:
practicalities of government must be borne in mind. The benefits of the 1985 Order could not be expected to materialise overnight, or even in a matter of months. The government was entitled to allow a reasonable period to elapse before deciding whether the Order had achieved its objective and, if not, whether the Order should be replaced with some other measure or simply repealed. Time would then be needed to implement any decision. I do not think the government could reasonably be expected to complete all these steps in six years, failing which it was in breach of
Community law. The contrary view would impose an unrealistic burden on the government in the present case. Accordingly I consider the Secretary of State discharged the burden of showing that the 1985 Order was still objectively justified in 1991.
367:, as was the quality of evidence provided, and that in any event no social policy could contravene the principle of equal treatment. The House of Lords affirmed this in holding that while there may have been objective justification in 1991 still for a two-year qualifying period, experience of such measures could call for a different assessment at a later point in time, and a government would have to keep the issue under review.
338:
measure may tell a different story. In course of time the measure may be found to be unsuited for its intended purpose. The benefits hoped for may not materialise. Then the retention in force of a measure having a disparately adverse impact on women may no longer be objectively justifiable. In such a case a measure, lawful when adopted, may become unlawful.
640:
341:
Accordingly, if the government introduces a measure which proves to have a disparately adverse impact on women, the government is under a duty to take reasonable steps to monitor the working of the measure. The government must review the position periodically. The greater the disparity of impact, the
337:
The requirements of
Community law must be complied with at all relevant times. A measure may satisfy Community law when adopted, because at that stage the minister was reasonably entitled to consider the measure was a suitable means for achieving a legitimate aim. But experience of the working of the
318:
This is the high watermark of the
Secretary of State's evidence. I think it is fair to say that overall, echoing the words of Balcombe L.J., these reports indicated that various small percentages of employers considered that employment protection legislation in general, and the provisions relating to
304:
This question raises an issue of fact, to be decided on the basis of the extensive documentary evidence adduced by the parties. The
Secretary of State relied on several reports. These are itemised in the judgment of Balcombe L.J. at ICR 907F-H. One report, 'Burdens on Business', was published by the
269:
77. Accordingly, the answer to the fifth question must be that if a considerably smaller percentage of women than men is capable of fulfilling the requirement of two years' employment imposed by the disputed rule, it is for the Member State, as the author of the allegedly discriminatory rule, to show
199:
The Court of Appeal held that under the Equal
Treatment Directive, a two-year qualifying period for unfair dismissal was indirectly discriminatory, and the Secretary of State for Employment had failed to prove that there was an objective justification for the disparate impact. However, it was unclear
166:
76/207/EEC. Ms
Seymour-Smith was dismissed after less than a year's work in 1991 for Christo & Co, and Ms Perez had similarly claimed unfair dismissal after losing her job at Matthew Stone Restoration. Statistically fewer women had long enough periods of service as men to accrue the protection of
239:
72. It must also be ascertained, in the light of all the relevant factors and taking into account the possibility of achieving the social policy aim in question by other means, whether such an aim appears to be unrelated to any discrimination based on sex and whether the disputed rule, as a means to
349:
Here again, the matter is debatable. As time passed, the persistently adverse impact on women became apparent. But, as with the broad margin of discretion afforded to governments when adopting measures of this type, so with the duty of governments to monitor the implementation of such measures: the
322:
On balance, I consider the
Secretary of State discharged the burden of showing his view was reasonable. It is apparent that obtaining hard evidence, including evidence of employer perceptions, is essentially a difficult task in this field. But this is not a case of a mere generalised assumption, as
223:
article 119, and that unfair dismissal legislation therefore fell within the ambit of EU measures on discrimination. The test for disparate impact would be borne out by evidence, including statistics and the relevant time was whether a "lesser but persistent and relatively constant disparity" would
345:
In the present case the 1985 Order had been in operation for six years when the two claimants were dismissed from their jobs. The
Divisional Court and the Court of Appeal noted there was no evidence that the extension of the qualifying period in 1985 led to an increase in employment opportunities.
299:
However, the majority of their
Lordships were agreed that there had been a sufficient objective justification by the government, namely encouraging recruitment by employers, to pass the 1985 Order. This resulted from the broad margin of discretion that governments had to implement social policy to
228:
70. In this case, the United
Kingdom Government contends that the risk that the exposure of employers to proceedings for unfair dismissal brought by employees who had only fairly recently been engaged is a deterrent to recruitment, so that extension of the qualifying period for protection against
144:
on the qualifying period of work before an employee accrues unfair dismissal rights. It was held by the House of Lords and the European Court of Justice that a two-year qualifying period had a disparate impact on women given that significantly fewer women worked long enough to be protected by the
265:
76. Mere generalisations concerning the capacity of a specific measure to encourage recruitment are not enough to show that the aim of the disputed rule is unrelated to any discrimination based on sex nor to provide evidence on the basis of which it could reasonably be considered that the means
257:
75. However, although social policy is essentially a matter for the Member States under Community law as it stands, the fact remains that the broad margin of discretion available to the Member States in that connection cannot have the effect of frustrating the implementation of a fundamental
362:
tested the impact that legislation for equality had on other provisions of national law, and came to the conclusion that member states should have a broad discretion in the kinds of social policies they pursue, but that their reasoning process was subject to review by the
243:
73. In that connection, the United Kingdom Government maintains that a Member State should merely have to show that it was reasonably entitled to consider that the measure would advance a social policy aim. It relies to that end on Case C-317/93
287:
and Lord Jauncey reached this conclusion in agreement with the Court of Appeal by comparing the number of women that did qualify for unfair dismissal protection the number who did not, and then assessing whether the disparity was significant.
153:
Ms Nicole Seymour-Smith and Ms Perez had made a claim against the Secretary of State for Employment that the United Kingdom's qualifying period of two years for unfair dismissal constituted indirect discrimination against women under the
329:(Case 171/88) ECR 2743. Here, there was some supporting factual evidence. To condemn the minister for failing to carry out further research or prepare an impact analysis, as recommended in 'Burdens on Business', would be unreasonable.
270:
that the said rule reflects a legitimate aim of its social policy, that that aim is unrelated to any discrimination based on sex, and that it could reasonably consider that the means chosen were suitable for attaining that aim.
253:
74. It is true that in paragraph 33 of the Nolte case the Court observed that, in choosing the measures capable of achieving the aims of their social and employment policy, the Member States have a broad margin of discretion.
167:
unfair dismissal law, for data collected between 1985 and 1991 when Ms Seymour-Smith was working. (There was evidence that after that time the gap had been starting to narrow.) The UK qualifying period resulted from the
309:
in March 1985. This report identified, as one of the available options, increasing employees' qualifying periods in unfair dismissal cases from one year to two years in firms employing more than twenty employees:
325:
200:
that compensation for unfair dismissal was "pay" within the meaning of the Treaty of the European Community, article 119, and so it was unable to grant relief. The Secretary of State appealed.
342:
greater the diligence which can reasonably be expected of the government. Depending on the circumstances, the government may become obliged to repeal or replace the unsuccessful measure.
907:
306:
296:
dissented from this conclusion on the ground that it was for the national court to assess the effect and that on the facts the statistics were not significant enough.
300:
achieve a legitimate aim. Yet it was emphasised that experience may change whether a measure is objectively justified. Lord Nicholls concluded in the following way.
618:
172:
346:
Ought the government to have taken steps to repeal the 1985 Order before 1991? In other words, had the Order, lawful at its inception, become unlawful by 1991?
145:
unfair dismissal law, but that the government could, at that point in the 1990s, succeed in an objective justification of increasing recruitment by employers.
279:
The House of Lords held by a majority of three to two that the extension of the qualifying period in 1985 had had a considerable disparate impact on women.
602:
220:
727:
912:
917:
897:
168:
178:
Elias QC represented the government and Allen QC represented the employees. Before the conclusion of the litigation, in 1999, the newly elected
689:
653:
314:'Our field work confirmed that the present one year period is too short for many smaller businesses, and is distorting dismissal decisions.'
677:
796:
Under the Unfair Dismissal (Variation of Qualifying Period) Order 1979 (SI 1979/959) the period had been raised to one year. Under the
595:
902:
155:
665:
588:
183:
800:
the period was lengthened from one year to two years in cases of employers employing fewer than twenty employees.
777:
364:
182:
government reduced the qualifying period for unfair dismissal from two years to one year, currently found in the
163:
137:
133:
77:
629:
236:
71. It cannot be disputed that the encouragement of recruitment constitutes a legitimate aim of social policy.
171:, which had raised the qualifying period for all employees from its original period of one year under the
756:
747:
738:
17:
797:
141:
869:
179:
830:
715:
891:
280:
208:
102:
853:
841:
818:
129:
81:
61:
230:
224:
exist. On the question of objective justification, the ECJ held the following.
293:
289:
219:
The ECJ responded that unfair dismissal compensation did constitute pay under
106:
94:
319:
unfair dismissal in particular, might inhibit the recruitment of employees.
284:
259:
98:
52:
R v Secretary of State for Employment, ex parte Seymour-Smith and Perez
580:
766:
118:
Two year qualifying period, unfair dismissal, indirect discrimination
333:
Objective justification: the continuing operation of the 1985 Order
246:
875:
159:
584:
881:
169:
Unfair Dismissal (Variation of Qualifying Period) Order 1985
326:
Rinner-Kühn v FWW Spezial-Gebäudereinigung GmbH & Co KG
884:, which allegedly unfairly dismissed Ms Seymour-Smith
126:
R (Seymour-Smith) v Secretary of State for Employment
240:its achievement, is capable of advancing that aim.
112:
88:
72:
67:
57:
47:
39:
34:
908:Court of Justice of the European Union case law
302:
226:
173:Employment Protection (Consolidation) Act 1978
878:, which allegedly unfairly dismissed Ms Perez
596:
266:chosen were suitable for achieving that aim.
8:
870:Duration of Employment by Sex and Age, 2003
258:principle of Community law such as that of
603:
589:
581:
31:
43:House of Lords, European Court of Justice
369:
789:
371:Disparate impact of 1985 dismissal law
84:(HL), IRLR 464 (CA) and IRLR 448 (HC)
27:2000 House of Lords employment law case
872:' (Social Trends 34) statistics.gov.uk
728:Kücükdeveci v Swedex GmbH & Co KG
703:R (Seymour-Smith) v SS for Employment
690:Abrahamsson and Anderson v Fogelqvist
654:Bilka-Kaufhaus GmbH v Weber von Hartz
35:R (Seymour Smith) v SS for Employment
18:R (Seymour-Smith) v SS for Employment
7:
678:Marschall v Land Nordrhein Westfalen
876:Matthew Stone Restoration's webpage
25:
868:Office for National Statistics, '
666:Barber v Guardian Royal Exchange
307:Department of Trade and Industry
913:2000 in United Kingdom case law
918:European Union labour case law
898:United Kingdom labour case law
1:
381:Women working under 2 years
156:Treaty of the European Union
387:Women working over 2 years
934:
882:Christo & Co's webpage
378:Men working under 2 years
229:dismissal would stimulate
184:Employment Rights Act 1996
778:United Kingdom labour law
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754:
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712:
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686:
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626:
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534:
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414:
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384:Men working over 2 years
383:
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377:
365:European Court of Justice
215:European Court of Justice
164:Equal Treatment Directive
138:United Kingdom labour law
117:
93:
630:Defrenne v Sabena (No 2)
642:Handels-og KF v Danfoss
352:
316:
272:
136:is a landmark case in
312:
903:House of Lords cases
757:Directive 2000/78/EC
748:Directive 2000/43/EC
739:Directive 2006/54/EC
798:Employment Act 1980
611:EU equality sources
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262:for men and women.
158:, article 119 (now
142:European labour law
669:(1990) Case 262/88
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773:
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162:art 157) and the
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16:(Redirected from
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101:, Lord Jauncey,
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836:
828:
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795:
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741:
732:
720:
708:
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694:
693:(2000) C-407/98
682:
681:(1997) C-409/95
670:
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657:(1984) C-170/84
646:
634:
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609:
579:
357:
277:
217:
206:
197:
195:Court of Appeal
192:
175:section 64(1).
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28:
23:
22:
15:
12:
11:
5:
931:
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863:External links
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186:section 108.
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355:Significance
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323:occurred in
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250:ECR I-4625.
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125:
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68:Case history
51:
29:
231:recruitment
132:and (1999)
892:Categories
390:Disparity
294:Lord Steyn
290:Lord Slynn
107:Lord Steyn
95:Lord Slynn
852:Source:
285:Lord Goff
260:equal pay
99:Lord Goff
831:C-167/97
577:See also
190:Judgment
134:C-167/97
113:Keywords
80:(ECJ),
78:C-167/97
58:Citation
854:UKHL 12
842:UKHL 12
829:(1999)
819:UKHL 11
621:art 157
130:UKHL 12
82:UKHL 11
76:(1999)
62:UKHL 12
767:EU law
731:(2010)
719:(2005)
707:(1999)
645:(1989)
633:(1976)
407:68.9%
404:77.4%
398:22.6%
180:Labour
784:Notes
567:74.1
564:78.4
561:25.9
558:21.6
555:1993
547:72.1
544:77.9
541:27.9
538:22.1
535:1992
527:67.4
524:74.5
521:32.6
518:25.5
515:1991
507:64.1
504:72.5
501:35.8
498:27.6
495:1990
487:63.8
481:36.2
475:1989
467:65.6
464:73.4
461:34.5
458:26.6
455:1988
447:67.1
444:75.3
441:32.9
438:24.7
435:1987
427:68.4
424:77.2
421:31.6
418:22.9
415:1986
410:8.5%
395:1985
247:Nolte
149:Facts
40:Court
765:See
619:TFEU
570:4.3
550:5.8
530:7.1
510:8.4
490:8.2
470:7.8
450:8.2
430:8.8
401:31%
292:and
160:TFEU
140:and
105:and
484:72
478:28
221:TEC
894::
283:,
233:.
97:,
604:e
597:t
590:v
20:)
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