R v SoS for Employment, ex p Seymour-Smith & Perez [1999] IRLR 253

• Plaintiffs were dismissed before they had completed the qualifying period, for the right not to be unfairly dismissed, of two years' continuous employment. 

• HL referred to the ECJ the questions (among others) what the test was for determining whether a measure adopted by a member state had such a degree of disparate effect as between men and women as to amount to indirect discrimination under Article 141EC, and what the legal conditions were for establishing the objective justification, for the purposes of indirect discrimination under article 141. 

• ECJ held that the best approach to determining indirect discrimination was to identify the proportions of men in the workforce who could and couldn’t pass the threshold for ‘qualifying period’ and compare these stats to those of women. If the proportion of women able to qualify was “considerably” smaller OR if the disparity was smaller but persisted over a long period of time then there was ID. 

• Objective justification required that there be a legitimate aim, that this aim is unrelated to sex, and that the member state could reasonably consider that the means chosen were suitable for attaining the aim.

• (HL) Using the test set out by the ECJ, the HL, by a majority, decided that the discrimination was justifiable. 

Lord Nicholls

• The test from the ECJ for objective justification is a broad one, reflecting the need for the government to be able to govern without having unrealistic burdens imposed on it. 

Lord Slynn (dissenting)

• There was no indirect discrimination, looking at the actual figures.