After six years of legal wrangling, the House of Lords has just given judgment in a test case brought by two women who said the law was indirectly discriminatory because fewer women than men could comply with the qualifying period. The judgment is a mixed bag, with neither side able to claim a victory, mainly because of the number of appeals and cross-appeals from previous decisions in the lower courts. So how did it get so complicated?
The story started in May 1991 when the two women, Nicole Seymour-Smith and Laura Perez, were dismissed from their respective jobs after only 15 months. Because they could not bring a claim for unfair dismissal in an industrial tribunal, the women started proceedings against the government for judicial review of the legislation, arguing that it was contrary to the European Equal Treatment Directive and should be quashed.
According to Gay Moon, the solicitor at the Camden Community Law Centre, which is supporting the women, the High Court "decided that although there was no disparate impact [between men and women], it could not see that the government had any justification for the two-year qualifying period".
The Court of Appeal then decided the legislation was discriminatory, having been convinced by the statistics presented by the women, which showed that between 1985 and 1991, fewer women than men were able to reach the two-year bench-mark. Although it refused to quash the legislation, it did declare it incompatible with the Equal Treatment Directive, and confirmed that there was no evidence to justify the two-year rule.
The Lords disagreed. Robin Allen, QC, for both applicants, explains: "It decided that the two women could not rely on the Equal Treatment Directive at all to bring a claim against their private-sector employers." This is because directives apply only to those working for the state or "emanations of the state".
But, as for questions relating to the European Treaty, the women will have to wait for an answer, because the Lords has referred those to the European Court of Justice. Among other things, that court is being asked to decide if compensation for unfair dismissal is pay.
"The point of asking this," Steve Gibbons, IDS Brief editor, explains, "is that if it is pay, the women would have directly enforceable rights against their employer in an industrial tribunal."
Michael Rubenstein, editor of Industrial Relations Law Reports, says the questions are very interesting, not least because they require the European court to create a test against which legislation would be measured for its impact on women (or men, for that matter), and to decide what would constitute objective justification for any legislation that might result in indirect discrimination.
But will the whole affair turn out to be a storm in a teacup, following the change of government? Prior to the election, the Labour Party's line was that it would not do anything until the case had been heard by the European court. And nothing much seems to have changed. A spokeswoman at the Department of Trade and Industry said: "There are no immediate plans to change the qualifying period for unfair dismissal complaints."
That view is likely to be greeted with dismay by the Trades Union Congress. Sarah Veale, a senior employment rights officer, says: "A parliamentary briefing has already gone out to all MPs about reducing the period to one year. We also want the Government to review a number of other individual employee rights, not just unfair dismissal."
Business organisations, on the other hand, will be relieved by the Government's approach. Michael O'Connor, the head of employee relations at the Confederation of British Industry, says: "Generally, the two-year rule has proved helpful to employers." Just how helpful was limited to "the extent that it gives employers a reasonably long period to assess performance".
Which begs the question as to why a Labour government should want to defend such a policy. The reality is that the reference to Europe will result in considerable delay before the matter can be resolved.
In the meantime, thousands of similar claims lodged with industrial tribunals await the outcome of Seymour-Smith. As Michael Rubenstein observes: "It creates an unholy mess for both employers and employees until someone gives them an answer"