Opinion: uncertainty over UK employment law is bad for both bosses and workers, says Ralph Nathan

Employment laws in Britain are increasingly being reversed by the courts because they fail to take into account principles of European law. This is beginning to have a debilitating effect on our system of employment law and means that employers and the Government will need to take more account of the European dimension in framing law and practice.

The Court of Appeal delivered another landmark decision recently when Nicole Seymour-Smith and Laura Perez successfully challenged the statutory requirement for an employee to have two years' service in order to complain of unfair dismissal. It concluded that the two-year requirement amounted to indirect sex discrimination. This was because the proportion of women qualifying was less than the proportion of men.

Strictly speaking, all the Court of Appeal has decided is that the two- year qualification period was discriminatory between 1985 (when it was increased from one year) and 1991 (when they were dismissed). The two persuaded the court that with 15 months' service they should have been able to claim unfair dismissal. The Government has said it will appeal to the House of Lords.

The immediate implications are said to be that an estimated 25,000 women can claim compensation against the Government or (if employed by an "emanation of the state") against their employer. Technicalities such as how far back the claims can go need to be worked through. The decision applies equally to men dismissed with one but less than two years' service in the period 1985 to 1991.

The case continues a recent trend in employee protection - that is UK domestic legislation being challenged and overturned because it breaches European principles.

Further examples of this trend abound. Less than two years ago, the European Court of Justice concluded that the pounds 11,000 maximum compensation for sex discrimination failed to provide an adequate remedy under European Commission directives. As a result, the Sex Discrimination Act 1975 was amended to remove any cap on compensation. Because the legislation on racial discrimination is similarly structured, the cap there was removed, too.

Then the Equal Opportunities Commission persuaded the House of Lords in March 1994 that the requirement for part-timers to have worked three years longer than their full-time colleagues to qualify for statutory rights was also indirectly discriminatory and was without justification. The Government had to change the legislation so that there is now no distinction between part-timers and full-timers seeking redress for redundancy or unfair dismissal.

On the equality front again, recent decisions from the European Court (Vroege and Fisscher) have led to a glut of claims by part-timers for entitlement to pension rights. Many of those claimants have long left their employers and are seeking retrospective entitlement to pension benefits as far back as 1976. The position in this area remains uncertain and needs clarification. The Government has already introduced revised regulations giving employees retrospective rights for service on or after 31 May 1995. For service before that, the tribunals will have to clarify the position. Further legislation is in the pipeline.

Moving away from equality issues, it caused something of a furore when the Employment Appeal Tribunal decided earlier this year that it was not necessary for an employee to have two years' service in order to claim unfair dismissal in the context of the transfer of an undertaking. Despite having been in employment less than two years, a Mr Milligan successfully claimed unfair dismissal against Securicor Cleaning Limited when North Yorkshire County Council transferred cleaning work to another contractor. The decision was based on an EC directive.

What would Labour do about this? At a Fabian Society event in June, Harriet Harman MP, Labour spokeswoman on employment, said that a Labour government would review the two-year requirement with a view to its removal. In light of recent events, it seems there may be amending legislation without the election of a Labour government.

If the Seymour-Smith and Perez decision is upheld by the Lords, will the Government legislate to reduce the qualifying period from two years to one or will it just play the waiting game until the point is argued on a 1995 dismissal? And if the period is reduced to one year, would a Labour government reduce it further or abolish it altogether?

Is even a one-year qualification period susceptible to attack? And what of the position of employees pending the decision of the House of Lords and legislation? This uncertainty is unsatisfactory both from the employer's and the employee's perspective.

So what should employers conclude from this? They should work on the basis that any employee with more than one year's service might have unfair dismissal rights. If compelled to predict, a six-month qualifying period seems to be a strong contender, and possibly three months with a change of government.

The author is a partner at the British-based commercial law practice Osborne Clarke.

Voices
A Russian hunter at the Medved bear-hunting lodge in Siberia
Save the tigerWildlife charities turn to those who kill animals to help save them
News
Davis says: 'My career has been about filling a niche - there were fewer short actors and fewer roles – but now I'm being offered all kinds of things'
PeopleWarwick Davis on Ricky Gervais, Harry Potter and his perfect role
News
i100
Sport
Frank Lampard will pass Billy Wright and equal Bobby Charton’s caps tally of 106 caps against
sportFormer Chelsea midfielder in Etihad stopgap before New York contract
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebookA unique anthology of reporting and analysis of a crucial period of history
Arts and Entertainment
The first film introduced Daniel Radcliffe to our screens, pictured here as he prepares to board the train to Hogwarts for the first time.
booksHow reading Harry Potter helps children grow up to be gay-friendly
Arts and Entertainment
A scene from Aladdin is performed at the Tony Awards in New York in June
theatreBrit producer Lythgoe makes kids' musical comedy a Los Angeles hit
Sport
Usain Bolt of Jamaica smiles and shakes hands with a competitor after Jamaica won their first heat in the men's 4x100m relay
sport
News
Chancellor George Osborne, along with the Prime Minister, have been 'complacently claiming the economy is now fixed', according to shadow Chancellor Ed Balls
i100... which is awkward, because he is their boss, after all
Life and Style
A small bag of the drug Ecstasy
Health
Life and Style
Floral-print swim shorts, £26, by Topman, topman.com; sunglasses, £215, by Paul Smith, mpaulsmith.co.uk
FashionBag yourself the perfect pair
News
news
News
Netherlands' goalkeeper Tim Krul fails to make a save from Costa Rica's midfielder Celso Borges during a penalty shoot-out in the quarter-final between Netherlands and Costa Rica during the 2014 FIFA World Cup
newsGoalkeepers suffer from 'gambler’s fallacy' during shoot-outs
News
people
Arts and Entertainment
Standing the test of time: Michael J Fox and Christopher Lloyd in 'Back to the Future'
filmReview: A week late, Secret Cinema arrives as interactive screening goes Back to the Future
Extras
indybest
News
i100
Independent
Travel Shop
the manor
Up to 70% off luxury travel
on city breaks Find out more
santorini
Up to 70% off luxury travel
on chic beach resorts Find out more
sardina foodie
Up to 70% off luxury travel
on country retreats Find out more
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

(Senior) IT Support Engineer - 1st-3rd Line Support

£40000 per annum: Ashdown Group: A successful IT service provider that has bee...

Wind Farm Civil Design Engineer

£55000 - £65000 Per Annum: The Green Recruitment Company: The Green Recruitmen...

Principal Marine Mechanical Engineer

£60000 - £70000 Per Annum: The Green Recruitment Company: The Green Recruitmen...

Principle Geotechnical Engineer

£55000 - £65000 Per Annum: The Green Recruitment Company: The Green Recruitmen...

Day In a Page

Save the Tiger: Meet the hunters tasked with protecting Russia's rare Amur tiger

Hunters protect Russia's rare Amur tiger

In an unusual move, wildlife charities have enlisted those who kill animals to help save them. Oliver Poole travels to Siberia to investigate
Transfers: How has your club fared in summer sales?

How has your club fared in summer sales?

Who have bagged the bargain buys and who have landed the giant turkeys
Warwick Davis: The British actor on Ricky Gervais, how the Harry Potter set became his office, and why he'd like to play a spy

'I'm a realist; I know how hard this business is'

Warwick Davis on Ricky Gervais, Harry Potter and his perfect role
The best swim shorts for men: Bag yourself the perfect pair and make a splash this summer

The best swim shorts for men

Bag yourself the perfect pair and make a splash this summer
Has Ukip’s Glastonbury branch really been possessed by the devil?

Has Ukip’s Glastonbury branch really been possessed by the devil?

Meet the couple blamed for bringing Lucifer into local politics
Dress the Gaza situation up all you like, but the truth hurts

Robert Fisk on Gaza conflict

Dress the situation up all you like, but the truth hurts
Save the tiger: Tiger, tiger burning less brightly as numbers plummet

Tiger, tiger burning less brightly

When William Blake wrote his famous poem there were probably more than 100,000 tigers in the wild. These days they probably number around 3,200
5 News's Andy Bell retraces his grandfather's steps on the First World War battlefields

In grandfather's footsteps

5 News's political editor Andy Bell only knows his grandfather from the compelling diary he kept during WWI. But when he returned to the killing fields where Edwin Vaughan suffered so much, his ancestor came to life
Lifestyle guru Martha Stewart reveals she has flying robot ... to take photos of her farm

Martha Stewart has flying robot

The lifestyle guru used the drone to get a bird's eye view her 153-acre farm in Bedford, New York
Former Labour minister Meg Hillier has demanded 'pootling lanes' for women cyclists

Do women cyclists need 'pootling lanes'?

Simon Usborne (who's more of a hurtler) explains why winning the space race is key to happy riding
A tale of two presidents: George W Bush downs his paintbrush to pen father’s life story

A tale of two presidents

George W Bush downs his paintbrush to pen father’s life story
Restaurateur Mitch Tonks has given the Great Western Pullman dining car a makeover

The dining car makes a comeback

Restaurateur Mitch Tonks has given the Great Western Pullman dining car a makeover
Gallery rage: How are institutions tackling the discomfort of overcrowding this summer?

Gallery rage

How are institutions tackling the discomfort of overcrowding this summer?
Louis van Gaal has £500,000 video surveillance system installed to monitor Manchester United players

Eye on the prize

Louis van Gaal has £500,000 video surveillance system installed to monitor Manchester United players
Women's rugby: Tamara Taylor adds fuel to the ire in quest to land World Cup

Women's rugby

Tamara Taylor adds fuel to the ire in quest to land World Cup