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Issue 21 (April 1998)

Contents

Dismissal claims to be adjourned pending Seymour-Smith
New cases highlight inconsistent approach by the courts
Sex discrimination laws used to challenge age discrimination
Court gives green light to rogue employers
Equal opportunities policies - do they have contractual force?
Injunction prevents dismissals
Dismissing without notice  

Dismissal claims to be adjourned pending Seymour-Smith

Davidson v City Electrical Factors Ltd [1998] IRLR 108

R v Secretary of State for Employment ex parte Seymour-Smith currently before the European Court of Justice (see Issue 2 of LELR) challenges the two year qualifying period for unfair dismissal applications on the basis of indirect sex discrimination. Industrial Tribunals across the country have been adopting different approaches to claims for unfair dismissal brought when the applicant has more than one year but less than two years service.

Some tribunals have been striking out unfair dismissal claims unless the applicant can show that s/he comes within the ambit of the Seymour-Smith case. This means that applicants lose their right to bring claims for unfair dismissal forever due to the strict three month time limit for bringing a claim.

In a pragmatic and welcome decision the Employment Appeal Tribunal in Scotland has decided that in these circumstances an applicant can insist on an adjournment.

Mr Davidson was dismissed when he had more than one but less than two years' service. He tried to bring a claim for unfair dismissal relying on the outcome of Seymour-Smith which challenges the validity of the Unfair Dismissal (Variation of Qualifying Period) Order 1985, increasing the qualifying period for bringing a claim for unfair dismissal from one year to two. The challenge in the ECJ is under Article 119 of the European Community Treaty on the basis that the two year qualifying period indirectly discriminates against women.

Mr Davidson argued that if the 1985 Order was found to be incompatible with European Law, the House of Lords could issue a declaration to require the courts to disregard the provisions of the Order. This would have the effect of returning the position to the previous law which provided a qualifying period of one year. He therefore asked for his claim to be adjourned until the decision in Seymour-Smith.

The Employment Appeal Tribunal in Scotland held that any unfair dismissal applicant who has between one and two year's service has an enforceable right to an adjournment pending the outcome of Seymour-Smith. If Mr Davidson's application were not adjourned it would be destroyed, in line with Biggs v Somerset County Council, there was no possibility of re-opening the case.

This welcome decision means that where an employee is dismissed and has between one and two years service an unfair dismissal application should be lodged with the industrial tribunal together with a request for an adjournment of the hearing while we await the decision in Seymour-Smith. It is understood that the Advocate General's opinion in Seymour-Smith is due soon. The decision of the EAT (Scotland ) is binding on industrial tribunals in England and Wales.