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R v SoS for Employment, ex p Seymour-Smith & Perez

[1999] IRLR 253

Case summary last updated at 17/02/2020 16:51 by the Oxbridge Notes in-house law team.

Judgement for the case R v SoS for Employment, ex p Seymour-Smith & Perez

Ps 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 art 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.

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