Court battle over ‘sexist’ UK unfair dismissal law

Date: 04/02/1999

By Myles Neligan

THE European Court of Justice will next week deliver a ruling on an aspect of UK employment law which trade unions and women's groups have frequently condemned as unfair.

Dating from 1978, the legislation states that staff who lose their jobs before they have worked for their employer for a minimum of two years are not entitled to claim compensation for unfair dismissal, unless they were fired because of pregnancy or trade union membership.

The UK law is currently being challenged in the ECJ by two British women who were sacked by their employers in 1990, before they had satisfied the requirement of a minimum of two years' work.

Both were subsequently denied the right to compensation when they took their case to an industrial tribunal in the UK.

Interest has been heightened by the fact that the women's case in the ECJ rests on the argument that the two-year minimum is indirectly discriminatory to women, because women who are fired are statistically less likely to have completed two years' employment than their male counterparts.

The two complainants' lawyers drew the Luxembourg-based Court's attention to figures showing that 32.6% of working women in the UK have been employed for less than two years, as compared with just 25.5% of working men.

They used this as evidence to support their argument that the British law was inconsistent with articles in the EU treaties which outlaw sexual discrimination, and a 1976 European directive guaranteeing equal working conditions for male and female employees.

If the full Court follows the opinion of its own advocate-general, which it does in about 70% of the cases it deals with, then it will rule that the law is incompatible with Union legislation.

The UK authorities would then be left with no option but to strike the offending piece of legislation from the statute books.

Although the advocate-general supported the two complainants' basic argument that making the right to sue for unfair dismissal conditional on having worked for the same employer for a minimum period of two years was inconsistent with EU law, he did not support their statistical argument.

He maintained that the figures cited in Court merely showed that men were more likely than women to have worked for the same employer for two years, not that the two-year minimum requirement discriminated against women in practice.

But he pointed out that since none of the legally recognised exceptions to the UK law explicitly referred to the gender of the dismissed employee, the legislation did not go far enough to uphold the rights of workers who were sacked simply because their employer preferred to hire someone of the opposite sex.

This, the advocate-general argued, showed that the law was "directly contrary" to the 1976 European directive.

The European Women's Lobby, an umbrella group representing women's rights groups in the 15 EU member states, is eagerly awaiting the full Court's ruling, which is due to be delivered next Tuesday (9 February).

"A favourable ruling would be in keeping with the spirit of the Amsterdam Treaty, which will greatly strengthen women's professional rights once it comes into force," said Cécile Gréboval of the EWL.