R v Secretary of State for Employment, Ex p Seymour-Smith (No 2) (Seymour-Smith, Ex parte)

A facially neutral employment requirement constitutes indirect sex discrimination under article 119 of the EC Treaty where it has a considerably greater adverse impact on women. A lesser statistical disparity may suffice when it is persistent, relatively constant and significant over a long period.

A discriminatory social-policy measure is objectively justified if it pursues a legitimate aim unrelated to sex and the state could reasonably regard the chosen means as suitable. The state enjoys a broad discretion, although general assumptions without factual support are insufficient. It must monitor the measure and may have to repeal or replace it if experience shows that its anticipated benefits have not materialised.

Two employees dismissed in 1991 were unable to pursue unfair-dismissal claims because section 64(1)(a) of the Employment Protection (Consolidation) Act 1978, as varied by the 1985 Order, required two years’ continuous employment. They sought judicial review on the ground that proportionately fewer women could satisfy that requirement.

The Divisional Court dismissed the application: [1995] ICR 889. The Court of Appeal allowed the employees’ appeal: [1995] ICR 919. Following an earlier hearing in the House and a reference to the European Court of Justice, the remaining questions were whether the requirement had an indirectly discriminatory effect under article 119 of the EC Treaty in 1991 and, if so, whether it was objectively justified.

1. Appeal allowed unanimously; cross-appeal dismissed. A majority comprising Lord Nicholls of Birkenhead, Lord Goff of Chieveley and Lord Jauncey of Tullichettle concluded that the qualifying period had a disparately adverse impact on women in 1991, but that it was objectively justified. Lord Slynn of Hadley and Lord Steyn concluded that the statistics did not establish indirect discrimination.

2. Per Lord Nicholls, with Lord Goff and Lord Jauncey agreeing, indirect discrimination does not require precisely equal effects on men and women. It requires an unjustifiable and considerable disparity of impact. A lesser disparity may establish that result where statistics covering a long period reveal a persistent, relatively constant and significant difference. The national court must assess the statistics’ validity, scale and significance. The roughly 10:9 ratio of male to female qualifiers over seven years was sufficient, although the case was borderline.

3. Lord Slynn, with Lord Steyn agreeing, considered that neither the 1985 figures nor the figures leading to the dismissals showed a considerably smaller proportion of women qualifying. Persistence alone could not make every continuing difference discriminatory. The disparity still had to be significant. The later improvement in the proportion of women qualifying supported the conclusion that discrimination had not been established.

4. Per Lord Nicholls, with Lord Goff and Lord Jauncey agreeing, the lower courts had imposed too stringent a justification test. A state must show that the measure pursues a legitimate social-policy aim unrelated to sex and that it could reasonably regard the means chosen as suitable. Governments enjoy a broad discretion in social and economic policy. Generalised assumptions without factual support are insufficient, but the state need not prove that the measure actually produced its intended benefit. The evidence permitted the Secretary of State reasonably to regard the longer period as capable of encouraging recruitment.

5. Per Lord Nicholls, a measure lawful when introduced may later become unlawful. A government must take reasonable steps to monitor a measure having a disparately adverse effect and periodically review it. The diligence required increases with the disparity. Nevertheless, six years afforded insufficient time in this case to require review, repeal or replacement. The 1985 Order therefore remained objectively justified in 1991, and the Divisional Court’s order dismissing the application was restored.

1. House of Lords: The appeal was allowed unanimously and the cross-appeal was dismissed. The Divisional Court’s order dismissing the judicial-review application was restored: [2000] 1 WLR 435.

2. European Court of Justice: On the House’s reference, the court held that unfair-dismissal compensation was pay under article 119 of the EC Treaty, stated the approach to disparate impact and objective justification, and left the assessment of the statistics to the national court: [1999] 2 AC 554.

3. House of Lords: At the earlier hearing, the House held that the Court of Appeal’s declaration was inappropriate and referred questions concerning article 119 to the European Court of Justice: [1997] 1 WLR 473.

4. Court of Appeal: The employees’ appeal was allowed because the statistical disparity was considered considerable and persistent and objective justification had not been established: [1995] ICR 919.

5. Divisional Court: The judicial-review application was dismissed because the proportion of women satisfying the qualifying period had not been shown to be considerably smaller: [1995] ICR 889.