(Divisional and Court of appeal) The claimants sought judicial review of a condition requiring an employee to have had two years of continuous employment before becoming eligible to make a claim for unfair dismissal. This condition was neutrally expressed and all employees, regardless of age, had to satisfy it in order to qualify to bring unfair dismissal claims. Statistics, however, showed that proportionately fewer women employees than male employees were able to satisfy it and, accordingly, that a higher proportion of women than of men were disadvantaged by it. The dicisional court dismissed the request, but it succeeded at appeal.
Balcombe LJ summarised the arguments placed before the Divisional Court: ‘So the first question we have to resolve is: What is the test which the Court should apply in deciding whether the effect of the two-year qualifying period prima facie discriminates against women? On behalf of the Secretary of State Mr Richards submits that the comparison is between the proportion of women who can comply with the qualification and the proportion of men who can comply with the qualification, and the former proportion must be considerably smaller than the latter. On behalf of the applicants Mr Allen submits that the essential comparison is between the proportion of women who cannot comply with the qualification (ie those who are disadvantaged by the qualification) and the proportion of men who cannot comply with the qualification, and then to consider the ratio between these two proportions. An example taken from the evidence will illustrate the difference between these two approaches. In the year 1985, out of a total workforce of some 18.73 million persons, 61% were male and 39% female; 77.4% of the male workers had two years’ service or more, but only 68.9% of the female workforce. So the proportion of females to males with two years’ or more service was 89:100. If, on the other hand, one looks at those with less than two years’ service, 31.1% of the female workforce had less than two years’ service compared with 22.6% of the male workforce, ie about 3:2.’ . . And ‘In my judgment Mr Allen’s submission cannot be correct unless it is qualified – which, to be fair to him, he concedes may be necessary. In paragraph 17 of his second affidavit on behalf of the Secretary of State, Mr Peter Parker makes the following point:
‘If the question is asked whether a considerably greater proportion of women than of men cannot comply with a given requirement or condition . . the results can be seriously misleading. If a hypothetical requirement is considered which 99.5% of men can comply with but only 99% of women, it follows that the proportion of women who cannot comply with the requirement is twice as great as the proportion of men who cannot comply. The figures relevant to the present proceedings are very much less extreme; nevertheless the arguments advanced . . are of the same kind and are, it is contended, similarly misleading.’
The logic of this argument is unanswerable and, indeed, unanswered by the applicants or their expert witnesses.’
McCulloch J said: ‘My conclusion is that, in considering whether there is considerable disparity, the court should look both at the relative percentages of those who meet the requirement and at the relative percentages of those who do not. Of these, the more important group will be those who qualify. The following example makes the point. If 98% of men qualify and 2% do not, and if 96% of women qualify and 4% do not, it would not be right to conclude that the disparity was considerable. But if only 4% of men and only 2% of women qualified the opposite conclusion might well be correct.’
The Court of Appeal allowed the appeal and declared that the Statutory Instrument (SI) introducing the two year qualifying period was incompatible with the Equal Treatment Directive. They did nor adjudicate on the question whether or not the SI infringed what was then Article 119 of the Treaty:’Despite our anxieties, however, we have been forced to the conclusion that on the material before us it has been demonstrated that for the period leading up to the dismissals of the two applicants there had been and continued to be a considerable and persistent difference in the numbers and percentages of men and women in the groups that did comply and the groups that did not comply with the two year qualification period.’
Balcombe LJ, McCulloch J
 ICR 889
England and Wales
Appeal from – Regina v Secretary of State for Employment, Ex Parte Seymour-Smith and Another CA 3-Aug-1995
The rule which extended to two years, the time before the vesting of employment rights was discriminatory, since it affected more women than men. . .
See Also – Regina v Secretary of State For Employment Ex Parte Seymour-Smith and Another (No 2) HL 17-Feb-2000
Although fewer men were affected by the two year qualifying period before becoming entitled not to be dismissed unfairly, the difference was objectively justified by the need to encourage employers to take staff on, and was not directly derived from . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 May 2022; Ref: scu.211369