Seymour–Smith: Problems in Procedures and Proof
| Author | Lorna Woods,Charlotte Villiers |
| Date | 01 January 1997 |
| Published date | 01 January 1997 |
| DOI | http://doi.org/10.1111/1468-2230.00070 |
Conclusion
There will be those who consider that the law should stand aloof from claims
which arise from transactions entered into for illegal purposes: the refusal to
provide curial assistance to a wrongdoer is seen as a more important public policy
than preventing the unjust enrichment of the defendant and, if the outcome proves
harsh, then the misfortune will be of the party’s own making. It is submitted,
however, that the court in Nelson has demonstrated that, with a more
discriminating application of the available remedies and sanctions, the law can
give effect to legislative policy without precluding the protection of the plaintiff’s
property rights. In short, it is unnecessary to sacrifice justice between the parties in
the service of some higher public policy.
Seymour-Smith: Problems in Procedures and Proof
Charlotte Villiers* and Lorna Woods**
Introduction
In RvSecretary of State for Employment, ex parte Seymour-Smith and Perez
(Seymour-Smith),
1
the Court of Appeal upheld the claim that temporal
prerequisites can constitute indirect discrimination. The case concerns two women
who were dismissed approximately 15 months after their appointment. They were
unable to register complaints of unfair dismissal to an industrial tribunal because of
the two-year minimum period of continuous employment required by section
64(1)(a) of the Employment Protection (Consolidation) Act 1978 (EPCA) for
making such a claim. They applied for judicial review, arguing that the Unfair
Dismissal (Variation of Qualifying Period) Order 1985 (the 1985 Order),
2
which
substituted two years as the qualifying period in the EPCA, was beyond the powers
of the Secretary of State and that it was contrary to the European Communities Act
1972 and the Equal Treatment Directive
3
(ETD). This argument had been accepted
in principle by the Divisional Court, although, on the facts, the applicants were
held to have failed to prove their claim. They appealed.
The issues before the Court of Appeal fell into two main areas: the procedural,
relating to the appellants’ standing and the appropriate form of relief; and the
substantive, concerning indirect discrimination, including, if indirect discrimi-
nation were shown, whether it was justified. The appellants also argued that unfair
dismissal compensation constitutes pay for the purpose of Article 119 and
therefore, in this respect, men and women should be treated equally.
*University of Glasgow.
**University of Sheffield.
Many thanks to Professor Associate Jo Steiner, Michael Jefferson and an anonymous referee, all of whom
commented on earlier drafts of this note. Errors remain our own.
1RvSecretary of State, ex p Seymour-Smith and Perez [1996] 1 All ER (EC) 1.
3 76/207/EEC [1976] OJ L39/40.
The Modern Law Review [Vol. 60
110 The Modern Law Review Limited 1997
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