Opinion of the Advocate General — ECLI:EU:C:1998:359
Date: 1998-07-14
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary
I — Introductory remarks I - 627
II — Legal framework I - 627
A — The Community legal framework I - 627
B — The national legal framework I - 629
III — Facts I - 632
IV — Questions referred for a preliminary ruling I - 633
V — Reply to the questions referred I - 634
A — Preliminary remarks concerning the first two questions I - 634
B — Question 1 I- 635
C — Question 2 I - 636
D — The remaining questions I - 642
E — My views on the case I - 644
(a) Article 5 of the directive I - 647
(b) Article 6 of the directive I - 650
F — The issue of indirect discrimination I - 655
G — Summary I - 664
VI — Conclusion I - 665
* Original language: Greek.
I - 626
R v SECRETARY OF STATE FOR EMPLOYMENT, EX PARTE SEYMOUR-SMITH AND PEREZ
I — Introductory remarks
1. The House of Lords has referred to the
Court of Justice for a preliminary ruling five
questions on the interpretation of Article 119
of the Treaty and the provisions of Council
Directive 76/207/EEC of 9 February 1976 on
the implementation of the principle of equal
treatment for men and women as regards
access to employment, vocational training and
promotion, and working conditions. 1
2. The dispute in the main proceedings arose
in relation to two employees who were dis­
missed by their employers before they had
completed two years' employment. The
ground on which the cases were brought is
that those employees were deprived of the
right 'not to be unfairly dismissed', recogn­
ised under United Kingdom legislation,
because they did not satisfy the requirement
for obtaining such a right of having com­
pleted two years' continuous employment
prior to the date of dismissal.
3. The questions referred seek to ascertain
whether the above requirement of two years
falls within the scope of Article 119 of the
Treaty or of Directive 76/207, whether it
entails indirect discriminatory treatment of
women in comparison with men (and if so,
under what circumstances may such treat­
ment be objectively justified) and also whether
the award of compensation, provided for,
inter alia, under the same United Kingdom
legislation as a sanction for unfair or unlawful
dismissal, constitutes 'pay' under Article 119
of the Treaty, or whether it falls under Direc­
tive 76/207.
II — Legal framework
A — The Community legal framework
4. Article 119 of the EC Treaty provides as
follows:
'Each Member State shall during the first stage
ensure and subsequently maintain the appli­
cation of the principle that men and women
should receive equal pay for equal work.
For the purpose of this Article, "pay" means
the ordinary basic or minimum wage or salary
and any other consideration, whether in cash
or in kind, which the worker receives, directly
or indirectly, in respect of his employment
from his employer.1 — OJ 1976 L 39, p. 40.
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OPINION OF MR COSMAS — CASE C-167/97
Equal pay without discrimination based on
sex means:
(a) that pay for the same work at piece rates
shall be calculated on the basis of the same
unit of measurement;
(b) that pay for work at time rates shall be
the same for the same job.'
5. That article was given detailed expression
by Council Directive 75/117/EEC of 10 Feb­
ruary 1975 on the approximation of the laws
of the Member States relating to the applica­
tion of the principle of equal pay for men and
women. 2
Article 1 of Directive 75/117 lays down in
particular that that principle means, for the
same work or for work to which equal value
is attributed, the elimination of all discrimina­
tion on grounds of sex with regard to all
aspects and conditions of remuneration,
without, however, in any way altering the
content or scope of that principle as defined
in Article 119 of the Treaty. 3
6. One year after the adoption of Directive
75/117, Directive 76/207 was adopted;
according to Article 1, its purpose was to put
into effect in the Member States the principle
of equal treatment for men and women as
regards access to employment and as regards
working conditions.
7. Article 2(1) of Directive 76/207 provides
that the principle of equal treatment is to
mean that 'there shall be no discrimination
whatsoever on grounds of sex either directly
or indirectly by reference in particular to
marital or family status'.
8. Article 5 of the directive states:
'1 . Application of the principle of equal
treatment with regard to working conditions,
including the conditions governing dismissal,
means that men and women shall be guaran­
teed the same conditions without discrimina­
tion on grounds of sex.
2 — OJ 1975 L 45, p. 19.
3 — Sec, for example Case 96/80 Jenkins v Kingsgate [1981] ECR
911, paragraph 22.
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R v SECRETARY OF STATE FOR EMPLOYMENT, EX PARTE SEYMOUR-SMITH AND PEREZ
2. To this end, Member States shall take the
measures necessary to ensure that:
(a) any laws, regulations and administrative
provisions contrary to the principle of
equal treatment shall be abolished;
»
9. Article 6 requires Member States to intro­
duce into their national legal systems such
measures as are necessary to enable all per­
sons who consider themselves wronged by
failure to apply to them the principle of equal
treatment 'to pursue their claims by judicial
process'.
B — The national legal framework
10. In the United Kingdom the right of
employees not to be unfairly dismissed was
first laid down in the Industrial Relations Act
1971. This was in harmony with the Interna­
tional Labour Organisation Recommendation
No 119 (1963), according to which termina­
tion of employment should not take place
without a valid reason.
11. At the time material to the facts in the
main proceedings, the right of employees not
to be unfairly dismissed was governed by sec­
tions 54 to 80 of the Employment Protection
(Consolidation) Act of 1978 (hereinafter 'the
1978 Act'), as amended in 1985. 4
12. In particular, section 54 of that Act pro­
vides that in every employment to which that
section applies every employee shall have the
right not to be unfairly dismissed by his
employer.
13. Pursuant to section 57, in determining
whether the dismissal of an employee was fair
or unfair, it is for the employer to show what
was the reason for the dismissal, and that it
was a reason falling within subsection 2 or
some other reason of a kind such as to justify
the dismissal (subsection 1).
The reasons falling within subsection 2 may
relate to the capability or qualifications of the
employee, to his conduct, to the fact that he
was redundant or that he could not continue
to work in the position which he held without
contravention of a duty or restriction imposed
by or under an enactment. However, certain
reasons are regarded expressly by the Act as
inadmissible, such as pregnancy and trade
union activities.
4 — Similar provisions are now contained in Part X of the Employ­
ment Rights Act 1996, Chapter 94, et seq.
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OPINION OF MR COSMAS — CASE C-167/97
Where the employer has fulfilled the require­
ments of subsection 1, the determination of
the question whether the dismissal was fair or
unfair is to depend essentially on the specific
circumstance, including the size and admin­
istrative resources of the undertaking, in accor­
dance with equity and the substantial merits
of the case (subsection 3).
14. Under section 68, where an industrial tri­
bunal finds that the grounds of a complaint
are well founded, three remedies are available,
which are to be explained to the complainant.
In particular:
(a) The tribunal may order reinstatement of
the employee, if the latter so wishes. The
employer must treat the complainant as if
he had not been dismissed. The tribunal
specifies the rights of the employee. In
particular, the employer must pay to the
employee any amounts which would have
been payable to the latter if he had not
been dismissed (section 69(2)).
(b) If reinstatement is not practicable, the tri­
bunal may order the employer, his successor
or an associated employer to re-engage the
employee in employment comparable to that
from which he was dismissed or other suit­
able employment, specifying the terms on
which re-engagement is to take place,
including remuneration, claims covering the
period of dismissal, seniority, date by which
the order must be complied with by the
employer, and so forth (section 69(4)).
(c) Lasdy, where the above solutions are not
appropriate or are unlikely to be successful,
the tribunal may make an award of compen­
sation for unfair dismissal (section 68(2)).
15. In the latter case, the award is to consist,
in general terms, of the following: first a basic
award, aimed at compensating for pay lost by
the employee as a result of the dismissal (sec­
tion 73); and secondly a compensatory award
which the tribunal considers just and equi­
table in all the circumstances having regard to
the loss sustained by the complainant in so
far as that loss is attributable to action taken
by the employer (section 74).
16. It should be noted, in particular, that in
certain cases the Act provides for the pay­
ment of an additional award of compensa­
tion. Under section 71(3), such cases are, in
particular:
'a dismissal which is an act of discrimination
within the meaning of the Sex Discrimination
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R v SECRETARY OF STATE FOR EMPLOYMENT, EX PARTE SEYMOUR-SMITH AND PEREZ
Act 1975 which is unlawful by virtue of that
Act' (subsection 3(b)), and also
'a dismissal which is an act of discrimination
within the meaning of the Race Relations Act
1976' (subsection 3(c)).
17. The right not to be unfairly dismissed,
however, is subject to a significant condition
as to time. Section 64 of the Act, as amended
by the Unfair Dismissal (Variation of Quali­
fying Period) Order 1985, 5 provides that sec­
tion 54 is not to apply to the dismissal of an
employee from any employment if the
employee was not continuously employed for
a period of not less than two years ending
with the effective date of termination.
18. That condition underwent variations
which, I consider it worth pointing out, more
or less reflect the philosophy of the political
parties which were successively in power in
the United Kingdom over the last 30 years or
so.
As the evidence adduced by the parties shows,
that temporal restriction was first introduced
by the Industrial Relations Act 1971 (section
28) when it was set at 104 weeks (approxi­
mately two years).
In 1974 the Trade Union and Labour Rela­
tions Act 1974 repealed the above Act, but
reintroduced protection of employees against
unfair dismissal, laying down the relevant
qualifying period as one year, which subse­
quently became (under the Labour Govern­
ment) 26 weeks.
The 1978 Act retained the period of 26 weeks.
In 1979, under a Conservative Government,
the Unfair Dismissal (Variation of Qualifying
Period) Order 1979 doubled the qualifying
period, extending it to one year.
In 1980 the Conservative Government par­
tially amended that qualifying period,
extending it, in respect of workers in small
undertakings, in other words undertakings
employing less than 20 persons, to two years
(section 8 of the Employment Act 1980).5 — S. I. 1985/782.
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OPINION OF MR COSMAS — CASE C-167/97
Those qualifying periods (namely one year
for undertakings with more than 20 employees
and two years for undertakings with less than
20 employees) applied until 1985, that is to
say, until the qualifying period was set at two
years for all categories of employees by the
1985 Order.
III — Facts
19. As the documents in the main proceed­
ings relate, Nicole Seymour-Smith started
work on 1 February 1990 with C. & Co.
Estate Agents as a secretary. After about two
months, according to the applicant, her
employer began to treat her in a humiliating
way. Inter alia she alleges that after the cleaner
was dismissed he required her to clean the
office, maintaining that that formed part of
her duties as a secretary and that it was
'women's work' inappropriate for the male
staff in the office to perform. He also called
her offensive names in front of the other staff.
The applicant was subsequently dismissed on
1 May 1991.
20. Accordingly, in her complaint to the
Industrial Tribunal, the applicant sought a
declaration that her dismissal was unfair and
an order that the employer pay her compen­
sation.
21. From the order of the Divisional Court
(p. 3), it appears that the complaint could not
be registered because the applicant had not
completed two years' employment with her
former employer, in accordance with the 1985
Order.
22. Laura Perez commenced employment on
19 February 1990 with M. S. Restoration
Limited as an office manager/personal assis­
tant to one of its directors. According to the
applicant, that director was satisfied with her
performance and had repeatedly promised
that he would give her various benefits,
including shares in the business and the posi­
tion of company secretary in a new company
which was being set up. The company was in
fact set up, but the applicant was not given
the position of company secretary or shares
in the company, whereupon she complained
to the director. A few days later, the applicant
went on leave but when she returned on 25
March 1991 the director gave her notice.
23. Consequently the second applicant com­
plained to the Industrial Tribunal, claiming
that her dismissal was unfair and seeking
compensation from her former employer.
24. The Central Office of Industrial Tribu­
nals informed her by letter that it would not
register her complaint because she had not
been employed for more than 2 years as was
required under the 1985 Order.
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R v SECRETARY OF STATE FOR EMPLOYMENT, EX PARTE SEYMOUR-SMITH AND PEREZ
25. The applicants subsequently sought leave
from the Queen's Bench Division of the High
Court to move for judicial review of the
variation of section 64 of the Act by the 1985
Order, claiming that it was contrary to Direc­
tive 76/207. Leave to move for judicial review
was granted on 12 September 1991.
26. The applicants argued before the Divi­
sional Court that the above two-year rule was
indirectly discriminatory as regards women
and that it was not objectively justified. In
that connection they relied on statistical evi­
dence from which it appeared that over the
period 1985 to 1990 the percentage of women
who did not fulfil the two-year requirement
was greater than the equivalent percentage of
men. The Secretary of State did not dispute
those statistics, but maintained that they did
not show that the rule was discriminatory
and that in any case it was objectively justi­
fied on grounds of social policy, consisting in
making it easier for employers to take on
more staff.
27. On 20 May 1994, the Divisional Court
dismissed the application, holding that the
1985 Order did not constitute discriminatory
treatment of women contrary to Directive
76/207; if, however, that had been the case,
no objective grounds capable of justifying
discrimination had been put forward.
28. The applicants appealed against that deci­
sion to the Court of Appeal. On 31 July 1995
that Court held that the 1985 Order was indi­
rectly discriminatory at the relevant time in
breach of Directive 76/207 and was not objec­
tively justified. The Court of Appeal had also
granted the applicants leave to put forward a
further argument that the 1985 Order was
contrary to Article 119 of the Treaty. How­
ever, the Court of Appeal refused to make an
order of 'certiorari' on that point, since it was
not satisfied that compensation for unfair dis­
missal was 'pay' within the meaning of Article
119 of the Treaty.
29. On appeal, the House of Lords decided
to set aside in part the Court of Appeal's
decision. Since it entertained doubts as to the
classification and lawfulness of the national
measure in question from the point of view
of Community law, it referred the following
questions to the Court of Justice for a pre­
liminary ruling:
IV — Questions referred for a preliminary
ruling
'1 . Does an award of compensation for
breach of the right not to be unfairly
dismissed under national legislation such
as the Employment Protection (Consoli­
dation) Act 1978 constitute "pay" within
the meaning of Article 119 of the EC
Treaty?
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OPINION OF MR COSMAS — CASE C-167/97
2. If the answer to Question 1 is "yes", do
the conditions determining whether a
worker has the right not to be unfairly
dismissed fall within the scope of Article
119 or that of Directive 76/207?
3. What is the legal test for establishing
whether a measure adopted by a Member
State has such a degree of disparate effect
as between men and women as to amount
to indirect discrimination for the pur­
poses of Article 119 of the EC Treaty
unless shown to be based upon objec­
tively justified factors other than sex?
4. When must this legal test be applied to a
measure adopted by a Member State? In
particular at which of the following points
in time, or at what other point in time,
must it be applied to the measure:
(a) when the measure is adopted;
(b) when the measure is brought into
force;
(c) when the employee is dismissed?
(5) What are the legal conditions for estab­
lishing the objective justification, for the
purposes of indirect discrimination under
Article 119, of a measure adopted by a
Member State in pursuance of its social
policy? In particular, what material need
the Member State adduce in support of
its grounds for justification?'
V — Reply to the questions referred
A — Preliminary remarks concerning the first
two questions
30. The first question asks whether compen­
sation for unfair dismissal, such as that pro­
vided for under the 1978 Act, constitutes 'p ay'
within the meaning of Article 119 of the
Treaty. The second question asks essentially,
whether the conditions governing the right
not to be unfairly dismissed, including a quali­
fying period such as that in issue, fall within
the scope of Article 119 or Directive 76/207.
31. From a comparison of the two questions,
in conjunction with the provisions of the 1978
Act set out above and the facts in the main
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R v SECRETARY OF STATE FOR EMPLOYMENT, EX PARTE SEYMOUR-SMITH AND PEREZ
proceedings, it appears that the issues raised
in the first two questions are different and
that from a logical and legal point of view
consideration of the second question should
precede that of the first.
32. The dispute in the main proceedings does
not in fact relate to the payment or level of
compensation but to whether the applicants
were entitled not to be unfairly dismissed,
that is to say, without reason. Moreover, even
were it to be held that the applicants were so
entitled, payment of compensation is not auto­
matic, but depends on a prior finding by the
competent court that their dismissal was unfair.
Lastly, compensation constitutes one of the
sanctions which the national court may impose
for unfair dismissal, but not the only one.
Consequently, consideration should properly
first be given to the second question.
33. However, since the applicants and the
Commission consider that the reply to the
first question affects the reply to the second,
it will do no harm, for the sake of complete­
ness, to examine the questions in the order in
which the national court placed them.
B — Question 1
34. The applicants and the Commission,
relying inter alia on Case C-262/88 Barber 6
and Case C-33/89 Kowalska, 7 maintain that
compensation for unfair dismissal, such as
that sought in the main proceedings, consti­
tutes a benefit which the employer pays to
the worker when a contract of employment is
terminated and as a result thereof and, con­
sequently, constitutes pay within the meaning
of Article 119 of the Treaty.
35. The United Kingdom Government con­
tends, however, as far as the substance of the
question is concerned, that such compensa­
tion does not constitute pay in the above
sense, because it is awarded where a condi­
tion of employment is disregarded, not for
work performed. Consequendy, in that Gov­
ernment's view, the essential character of pay,
as remuneration for work performed, is
lacking.
36. As the Court held in the abovementioned
judgments, the concept of pay, within the
meaning of the second paragraph of Article
119, comprises any other consideration,
whether in cash or in kind, whether imme­
diate or future, provided that the worker
receives it, albeit indirectly, in respect of his
6 — [1990] ECR I-1889.
7 —[1990] ECR I-2591.
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OPINION OF MR COSMAS — CASE C-167/97
employment from his employer; consequently
the fact that certain benefits are paid after the
termination of the employment relationship
does not prevent them from being in the
nature of pay, within the meaning of Article
119 of the Treaty. In particular, compensation
paid by an employer to an employee in respect
of his dismissal on economic grounds is a
form of deferred pay to which the worker is
entitled by reason of his employment but
which is paid to him on termination of the
employment relationship with a view to
enabling him to adjust to the new circum­
stances arising from such termination. Accord­
ingly, such compensation falls within the scope
of Article 119 of the Treaty. 8
37. For the same reason, compensation
awarded by an employer to an employee in
respect of unfair dismissal, as in the present
case, constitutes, in the broad sense, 'pay'
which falls within the scope of Article 119.
38. The arguments of the United Kingdom
Government cannot be accepted. The fact that
in cases of unfair dismissal work is not actu­
ally performed is not important, since the
non-performance of work is not due to the
employee but to the employer, who has
brought about the unfair dismissal. In that
case, as the United Kingdom legislation lays
down, moreover, compensation is intended to
provide the employee with what he would
have been entitled to receive had the employ­
ment relationship not been wrongfully termi­
nated by the employer. Consequently the
basis of that compensation is also the employ­
ment relationship.
Case 149/77 Defrenne III, 9 on which the
United Kingdom Government relies, does not
provide an argument in support of its point
of view. In that judgment, it was held that a
condition of employment, such as the setting
of an age-limit after which employment would
be terminated, did not fall under Article 119
of the Treaty (paragraph 24). That issue will
arise, however, in the context of the second
question rather than this question, which does
not relate to a condition governing dismissal
but to compensation, in other words,
according to the Court's case-law on the sub­
ject, to deferred pay.
C — Question 2
39. The applicants maintain that, if it is
accepted that compensation constitutes pay
within the meaning of Article 119 of the
Treaty, then the right not to be unfairly dis­
missed, giving rise to entitlement to the com­
pensation in question, also falls within the
scope of that article rather than that of Direc­
tive 76/207. Moreover, they point out that,
according to the case-law of the Court, Article
119 has both vertical and horizontal direct
effect; if the rule in question was held to be
contrary to the principle of equal pay, the
8 — Sec Barber (paragraphs 12 to 20) and Kowalska (paragraphs
9 to 11), botn cited above. 9 — [1978] ECR 1365.
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R v SECRETARY OF STATE FOR EMPLOYMENT, EX PARTE SEYMOUR-SMITH AND PEREZ
possibility of relying on Article 119 would
allow them to assert a right to compensation
directly against their employer. That could
not be done by means of Directive 76/207, a
fact which would deprive the principle of the
prohibition of discrimination of any practical
effect.
40. The Commission puts forward a similar
view. In addition it points out that the condi­
tions under which an employee becomes enti­
tled to compensation, such as, in this case,
where there is a right not to be unfairly dis­
missed, fall under Article 119. Conversely,
other situations, such as, for example, rein­
statement or re-engagement of the dismissed
employee, fall under Directive 76/207.
41. The United Kingdom Government is of
the opinion that, irrespective of the reply to
the first question, the second question relates
to a condition governing dismissal, which falls
within the scope of Directive 76/207.
42. The view taken by the applicants and by
the Commission cannot be accepted.
43. First of all, it must be emphasised that
the question whether a national measure falls
within the scope of one or another rule of
Community law must be decided on the basis
of objective criteria, in the light, on the one
hand, of the particular scope of each Com­
munity rule which falls prima facie to be
applied, and, on the other hand, of the nature
of the national measure at issue and the facts
of the particular dispute. Consequently no
account is taken of subjective considerations,
such as which rule offers the more effective
means to achieve the result that the indi­
viduals concerned envisage. That applies irre­
spective of the fact that the following analysis
will show, I believe, that the national measure
at issue is directly, and indeed manifoldly,
contrary to Directive 76/207 which, more­
over, provides almost as effective means as
Article 119 to remedy the situation in which
the applicants found themselves.
44. As regards substance, it should be noted
that in Case 149/77 Defrenne III, an employee
had been dismissed because she had reached
an age-limit that was lower than that appli­
cable to men, and the question raised was
whether that constituted discrimination. In its
judgment, cited above, 10 the Court made a
clear distinction between equality of men and
women as regards pay,. which falls under
Article 119, and equality in respect of other
working conditions, which fall under Articles
117 and 118, and further found that any
financial consequences of working conditions
— such as the compensation claimed by Ms
Defrenne — were not enough to bring them
under Article 119.
10 — See footnote 9 above.
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OPINION OF MR COSMAS — CASE C-167/97
45. In particular the Court stated that:
'In contrast to the provisions of Articles 117
and 118, which are essentially in the nature of
a programme, Article 119, which is limited to
the question of pay discrimination between
men and women workers, constitutes a spe­
cial rule, whose application is linked to pre­
cise factors.
In these circumstances it is impossible to
extend the scope of that article to elements of
the employment relationship other than those
expressly referred to.
In particular, the fact that the fixing of certain
working conditions — such as a special age-
limit — may have pecuniary consequences is
not sufficient to bring such conditions within
the field of application of Article 119, which
is based on the close connection which exists
between the nature of the services provided
and the amount of remuneration.' 11
46. From that judgment it follows that the
Treaty requires only the first form of equality,
whereas the second is confined to the regula­
tion of employment relations which is, in
principle, a matter for the Member States,
unless the Community has laid down sec­
ondary legislation in that area. In view of the
fact that, obviously, at the time when Ms
Defrenne's employment was terminated (1968)
Directive 76/207 had not yet been adopted,
the Court concluded that the dispute in the
main proceedings was subject to the prin­
ciples and provisions of national and interna­
tional law applicable in the Member State in
question (paragraph 30 et seq.).
47. In Case 19/81 Burton, the Court was
asked 'whether a condition that a male
employee must have reached the age of 60
before he was entitled to voluntary redun­
dancy benefit, whereas women were so enti­
tled at the age of 55, constituted discrimina­
tion on grounds of sex and if so which
Community provisions governed the situa­
tion. In its judgment, 12 the Court stated:
"... the question of interpretation which has
been referred to the Court concerns not the
benefit itself, but whether the conditions of
access to the voluntary redundancy scheme
are discriminatory. That is a matter covered
by the provisions of Directive 76/207 ... and
not by those of Article 119 of the Treaty or
Directive 75/117' (paragraph 8).
11 — Paragraphs 19, 20 and 21. Sec also Case C-1/95 Geraer
[1997] ECR I-5253, paragraph 21 et scq. 12 — [1982] ECR 555.
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R v SECRETARY OF STATE FOR EMPLOYMENT, EX PARTE SEYMOUR-SMITH AND PEREZ
Subsequently the Court gave consideration to
the question in the context of Article 5 of the
Directive, stating that:
'According to Article 5(1) of Directive 76/207
application of the principle of equal treatment
with regard to working conditions, including
the conditions governing dismissal, means that
men and women are to be guaranteed the
same conditions without discrimination on
grounds of sex. In the context of the direc­
tive the word "dismissal" must be widely
construed so as to include termination of the
employment relationship between a worker
and his employer, even as part of a voluntary
redundancy scheme' (paragraph 9).
48. The Court employed similar consider­
ations when it examined, in the light of Direc­
tive 76/207, in particular Article 5(1), the fol­
lowing situations:
— the dismissal of an employee when she
reached a certain age in connection with a
mass redundancy caused by the closure of
part of an undertaking's plant; 13
— the dismissal of an employee by a State
authority on the ground that she had
reached or gone beyond the statutory
retirement age for civil servants; 14
— also, albeit formulated very succinctly, the
dismissal of an employee which, according
to the employer, was due to redundancy,
but according to the dismissed employee
and the national court was due to the
employee's stated intention to undergo
gender reassignment. 15
49. In this case, the 1978 Act lays down the
right of employees not to be unfairly dis­
missed and sets out the terms and conditions
of that right. The contested variation of sec­
tion 64 introduces an exception to that rule as
regards one category of employees — those
employees who have not completed two years'
employment, who are deprived of that right.
Both the rule and the exception constitute
terms under which the dismissal of employees
is permitted and, consequendy, fall within the
scope of Directive 76/207 and, in particular,
of Article 5(1).
13 — Case 151/84 Roberts v Tate & Lyle [1986] ECR 703, para­
graphs 30 to 32.
14 — Case 152/84 Marshall v Southampton and South-West Hamp­
shire Area Health Authority (Teaching) [1986] ECR 723,
paragraphs 32 to 34.
15 — Case C-13/94 P v S and Cornwall County Council [1996]
ECR I-2143, paragraph 12. It should be noted that in that
case, despite the fact that the dismissal took place in December
1992, after the completion of one and a half years' employ­
ment, the Industrial Tribunal which referred questions to the
Court for a preliminary ruling examined the substance of
the case and considered whether the dismissal constituted
discrimination on grounds of sex, without raising the issue
of the qualifying period as was done in this case.
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OPINION OF MR COSMAS — CASE C-167/97
50. The applicants, in particular, and indi­
rectly the Commission as well, appear to
consider that, since compensation for unfair
dismissal constitutes 'pay' within the meaning
of Article 119 of the Treaty, the impugned
period of two years, inasmuch as it consti­
tutes a condition governing dismissal, is also
a condition governing 'pay'. They therefore
hope, perhaps, that if the condition is set aside
as contrary to the principle of equal pay, their
dismissal will in any case be regarded as
unlawful, and by virtue of the horizontal
effect of Article 119, they will be able to assert
directly against their employer their entitle-
ment to the compensation provided for by
the Act.
51. That argument requires a series of impos­
sible logical and legal leaps.
52. First, it is not true that, in the specific cir­
cumstances, any infringement by the two-
year rule against Community law automati­
cally entails the applicants' dismissal being
unlawful and hence payment of compensa­
tion.
The contested provision, as stated above,
excludes employees who have served less than
two years, such as the applicants, from the
rule applied to other employees.
The rule applicable to the latter, however, is
not that, after two years' employment, dis­
missal is in any case unfair, in other words
that dismissal is prohibited. On the contrary,
dismissal is allowed, but must, however, be
justified by fair and lawful reasons, subject to
review by the competent court. If that court
finds that the legal requirements are not satis­
fied, the dismissal is regarded as unfair and
the system of sanctions against the employer
becomes applicable, one of which is compen­
sation for the dismissed employee.
Even if the two-year qualifying period intro­
duced indirect discrimination, as the appli­
cants and the Commission maintain, the legal
consequence, in accordance with settled case-
law, would be the setting aside of the defec­
tive provisions and the restitution of the
equality encroached upon, by granting to the
group who have suffered discriminatory treat­
ment the right granted to the advantaged
group. 16 That right, as set out above, is not
that dismissal is automatically unfair, but that
it should take place on lawful grounds, which
are subject to review by the competent court.
Consequently the most that the applicants
may gain by a declaration that the provisions
at issue introduced indirect discrimination is,
essentially, consideration by the competent
court of the merits of their dismissal; only if,
and provided that, the court held their dis­
missal to be unfair, would they be entitled to
compensation under the Act. Any recogni­
tion that the group to which the applicants
belong have a right greater than that granted
16 — See, for instance, Kowalska, cited in footnote 6, paragraph
20; Case C-184/89 Nimz [1991] ECR I-297, paragraph 21;
and Case C-200/91 Coloroll[1994] ECR I-4389, paragraph
29, and so forth.
I-640
R v SECRETARY OF STATE FOR EMPLOYMENT, EX PARTE SEYMOUR-SMITH AND PEREZ
by the settled provisions of the Act to
employees in the advantaged group, that is to
say that all dismissals which have taken place
before completion of two years were regarded
as unfair, would in reality create new ine­
quality for those already affected and would
be outside the letter and spirit of the provi­
sions on equal treatment.
53. From the preceding argument it follows
that even if the compensation to which an
employee is entitled for unfair dismissal does
constitute 'pay' for the purposes of Article
119 of the Treaty, nevertheless it bears merely
an indirect relation to the requirement as
regards dismissal, which constitutes the sub­
ject of the second question referred to the
Court. As has already been held in Defrenne
III, the fact that certain working conditions
have financial consequences does not suffice
to make Article 119 of the Treaty applicable
to them.
Of course, the employee, in performing his
work, has pay in view. That does not, how­
ever, mean that all working conditions are
also conditions governing pay, so that the
provisions governing the latter are applicable
to the former. If that were the case, the adop­
tion of Directive 76/207 would have been
redundant, since all the issues concerning
working conditions would have fallen indis­
criminately under Article 119 of the Treaty.
That interpretation, however, is contrary to
the actual letter of the provision and has
properly been rejected by the Court.
54. One more clarification is required in order
to complete my argument on the question of
the legal framework in which the case should
be set.
Certain judgments appear to extend the
meaning of 'pay' to include the conditions or
the system by means of which pay is earned.
Thus in Barber, cited above, the Court, having
held that a pension paid under a
'contracted-out scheme' constituted pay under
Article 119 of the Treaty (paragraph 28), sub­
sequently held that the imposition of an age
condition which differed according to sex was
contrary to that article, because 'Article 119
prohibits any discrimination with regard to
pay as between men and women, whatever
the system which gives rise to such inequality'
(paragraph 32, emphasis added).
In its judgment in Nimz, 17the Court also
held that rules contained in a collective agree­
ment governing what was practically an auto­
matic reclassification in a higher salary grade
came in principle within the concept of pay
as defined in Article 119 of the Treaty (para­
graph 10). Accordingly, it was further held
that the taking into account of a lesser period
of service for employees working full-time in
relation to part-time employees for the pur­
pose of salary increases introduced discrimi­
nation against women contrary to Article 119,
where it was shown that a significantly smaller
number of men belonged to the latter cat­
egory (paragraph 15).
17 — Cited in footnote 16.
I-641
OPINION OF MR COSMAS — CASE C-167/97
55. From those judgments, however, the con­
clusion cannot be drawn that the Court has
so broadened the definition of 'pay' that all
working conditions or advancement in
seniority are covered by the term. That is
because, as the Court has clarified, moreover,
in its subsequent case-law, account was prin­
cipally taken in those judgments of the direct
and practically automatic link of the criterion
in question with pay, a link which made it
possible to include the criterion in a broad
definition of pay.
56. For instance, in Case C-1/95 Gerster, it
had been claimed, in reliance on the judgment
in Nimz, that a system which provided for
different calculation of length of service for
civil servants working full-time on the one
hand and those working part-time on the
other was contrary to Article 119 rather than
to Directive 76/207. In its judgment in Ger­
ster, 18 the Court rejected that argument,
emphasising that in Nimz promotion was
practically automatic and consequently had a
direct link with pay; conversely, the rules at
issue in the main proceedings were indirectly
linked to pay and consequently did not fall
under Article 119 of the Treaty but under
Directive 76/207, in the light of which the
question raised was accordingly examined
(paragraphs 22 et seq.).
57. In conclusion, the compensation to which
Question 1 refers constitutes simply an indi­
rect and possible consequence of the right not
to be unfairly dismissed to which Question 2
refers. Consequently, the fact that compensa­
tion falls under Article 119 of the Treaty does
not affect the nature of the latter right as a
condition governing dismissal which falls
under Directive 76/207. Accordingly, the ques­
tion whether denying employees who have
not completed two years' employment the
right not to be unfairly dismissed constitutes
discrimination against women must be decided
on the basis of the provisions of Directive
76/207 rather than Article 119 of the Treaty.
D — The remaining questions
58. In Questions 3, 4and 5, the national court
asks essentially for clarification as to the con­
ditions under which a measure such as the
contested two-year requirement constitutes
indirect discrimination against women, the
point in time at which a court should apply
the test for establishing such discrimination
and when such discrimination may be regarded
as objectively justified.
59. The national court raises the above ques­
tions with express reference to Article 119 of
the Treaty. Nevertheless, in view of the reply
to Question 2, the question of any conflict
with Community law on the part of a national
measure such as that at issue must be exam­
ined in the context of Directive 76/207.18 — Cited in footnote 11.
I-642
R v SECRETARY OF STATE FOR EMPLOYMENT, EX PARTE SEYMOUR-SMITH AND PEREZ
60. The applicants maintain that the measure
introduces indirect discrimination against
women. That is because, from statistical evi­
dence relied upon before the United Kingdom
courts it appears, in their view, that the con­
tested measure may affect more women than
men, since the percentage of women with less
than two years' employment in relation to
the total percentage of the female working
population appears greater than the percentage
of men with a corresponding period of
employment in relation to the total percentage
of working men. According to the applicants,
moreover, the contested measure is not objec­
tively justified.
The United Kingdom Government has not
disputed the statistics per se but observes that
the disparity between the percentage of women
employees affected by the contested measure
as compared with the percentage of men is
very small, and contends that it has recently
been tending to disappear. At all events,
according to the United Kingdom Govern­
ment, the disparity is not so 'large' or 'con­
siderable' as to indicate prima facie discrimi­
nation in accordance with the case-law of the
Court. In addition, the United Kingdom Gov­
ernment considers that the point in time at
which the test for any inequality should be
applied is the time of dismissal. Lastly, it
points out that the aim of the contested mea­
sure was principally to promote employment,
but it states that it is not able to produce evi­
dence to show that the measure had the desired
effect on the employment market.
The Commission takes basically the same
view as the applicants, but makes a side refer­
ence to an American-inspired system for
reviewing statistics and determining whether
there is any indirect discrimination which
does not, however, appear to be in keeping
with the settled case-law of the Court on
those questions.
61. I take the view that the basis on which
the applicants and the Commission place the
question, and which the United Kingdom
accepts, is not correct. That is not only — or
rather not so much — because the contested
measure itself does not appear to introduce a
distinction, or discrimination, to the detri­
ment of women employees, either by its nature
or by its results. In my view the measure is
contrary to Directive 76/207 but for a more
fundamental reason.
62. In particular I propose to argue that inas­
much as the two-year rule at issue on the one
hand allows dismissal of an employee ('whether
a man or a woman) on grounds referable to
the employee's sex, and on the other hand
prevents that employee, if he or she believes
himself/hers elf thereby wronged from seeking
an effective legal remedy, to that extent alone
it is directly contrary to Articles 5 and 6
respectively of Directive 76/207. That applies
regardless of whether the percentage of women
affected is greater or smaller than that of male
employees, and, above all, regardless of
whether the dismissed employee has been
I-643
OPINION OF MR COSMAS — CASE C-167/97
employed for two years, one year, six months,
or a single day.
63. I shall first expand on the correct view, as
I see it, and subsequently examine certain
aspects of the parties' arguments.
E — My views on the case
64. First of all, the nature of the two-year
rule at issue must be more closely examined
in the context of the 1978 Act, in particular
its aim and function.
65. As is shown by the file on the case,
including the Parliamentary debates on the
extension of the qualifying period to two
years, which took place in 1985, the provision
to that effect in the Act pursued, over the
years, two basic objectives.
66. The first was to give an employer a rea­
sonable period to assess the capacities and
productivity of the employee in order to
decide whether he was able to satisfy the
requirements of the job for which he had been
selected and whether he should be definitively
engaged. It appears that in laying down the
'qualifying period' in question the UK legis­
lature, particularly when the period was short,
was attempting to reconcile the employer's
need to select the appropriate staff for his
undertaking unhampered with the need to
protect the employee from any arbitrary dis­
missal and also with the need not to extend
the employee's state of uncertainty as to his
future for too long.
67. With the successive extensions, in par­
ticular the last, a further purpose was given
prominence. As is clear from the evidence
available, and from the grounds set out in the
measure at issue, the extension of the quali­
fying period to two years was considered
expedient in order to encourage employers to
recruit new staff. On that view, when the
qualifying period is short, employers hesitate
to take on new staff because they are afraid
that they will become embroiled in legal
actions and will be obliged to pay compensa­
tion to employees whom they might have to
dismiss after a short qualifying period. Con­
versely, on the same view, if the employer
knows from the outset that he has a longer
period available to decide whether to keep on
an employee he will be more prepared to
recruit staff, in the knowledge that there is a
longer period within which he may dismiss
them without having to suffer any conse­
quences.
68. From all the foregoing, the conclusion
must be drawn that the successive extensions
and reductions in the qualifying period were
part and parcel of the policy of each govern-
I-644
R v SECRETARY OF STATE FOR EMPLOYMENT, EX PARTE SEYMOUR-SMITH AND PEREZ
ment on labour relations, employment and
economic development. From a broader point
of view, moreover, it is certain that they
reflected the general philosophy as regards
those areas of the political parties which held
power from 1971 onwards in the United
Kingdom.
69. At this point a clarification is necessary.
It is true that, according to the case-law,
where a measure which introduces discrimi­
nation is 'objectively justified' it is not con­
trary to the principle of equal treatment. 19 In
this case, however, there is no question of
reviewing 'objective justification'. In fact such
review arises at a later stage, that is to say,
once it has been found, in accordance with
the criteria laid down in the case-law, that the
measure under consideration does introduce
discrimination. Conversely, clarification of the
nature and purpose of a measure such as that
at issue is of significance at the present stage
of the investigation because it is connected to
the extent to which the national measure is of
concern to Community law and, consequendy,
the extent of the review to be carried out by
the Court.
70. In my opinion, in so far as the adoption
of a longer or shorter qualifying period before
there can be unfair dismissal constitutes a
means of exercising government policy and is
ultimately a political choice, it falls within the
scope of Articles 117 and 118 of the Treaty.
Those articles, as the Court has repeatedly
held, are simply in the nature of a pro­
gramme. 20 Accordingly, the adoption of mea­
sures in areas which are covered by the above
articles is in principle a matter for the Member
States, which enjoy in that connection a wide
margin of discretion, 21 unless the Commu­
nity decides to lay down specific measures in
the area in question, using the powers con­
ferred by other provisions of the Treaty. 22
That, moreover, was the case with the adop­
tion of Directive 76/207 which, as concerns
working conditions, did not have its basis in
a specific provision of the Treaty (see the third
recital in the preamble), and therefore cited
the general Article 235 as its legal basis (see
the first citation in the preamble).
19 — See point 118 below.
20 — See, inter alia, Defrenne III, cited in footnote 9, paragraph
19; Case 126/76 Zaera [1987] ECR 3697, paragraph 14; and
Joined Cases C-72/91 and C-73/91 Sloman Neptun [1993]
ECR I-887, paragraph 25. However, those articles are not
devoid of any legal effect but constitute an important aid for
the interpretation of other provisions of the Treaty and of
secondary Community law in social matters (see the latter
two judgments, at paragraphs 14 and 26 respectively).
21 — See Zaera, cited in the preceding footnote, paragraph 14, and
Sloman Neptun, paragraph 26. Sale also Case C-343/92 De
Weerd and Others [1994] ECR I-571, paragraph 28; Case
C-317/93 Nolte [1995] ECR I-4624, paragraph 33; Case
C-444/93 Megner [1995] ECR I-4741, paragraph 29; Case
C-280/94 Posthuma [1996] ECR I-179, paragraph 26. Of
course the Member States may adopt, in the context of their
social policy, new measures even though they are more
stringent than the previous measures, provided that those
measures are not contrary to the principle of equal treatment
(see, for example, Case C-137/94 Richardson [1995] ECR
I-3407, paragraph 29, and Posthuma (paragraph 29)). Nev­
ertheless, there must be no going to the other extreme, to
reach a situation where, by means of Community provisions
of specific and restricted scope, the policy of the Member
States could be reviewed, and possibly overturned, in areas
where the Community had not as yet wished to legislate (see
Defrenne III, cited in footnote 9, paragraph 32; Case 170/84
Bilka [1986] ECR 1607, paragraph 42, and others).
22 — See Case 43/75 Defrenne II [1976] ECR 455, paragraph 63.
From this point of view, notwithstanding the difficulties and
complexities of the matter, I would observe that the Com­
munity could have undertaken a global examination of the
problem of working conditions, having regard to its obvious
repercussions on the achievement of the internal market.
I-645
OPINION OF MR COSMAS — CASE C-167/97
71. As regards in particular the question of
the dismissal of employees, apart from Direc­
tive 75/129 on collective redundancies, 23there
do not appear to be any Community provi­
sions regulating that question in a general way
in the Member States. Moreover Directive
76/207, with which this case is concerned,
treats the matter from a particular point of
view, in other words that of equal treatment
for men and women as regards the conditions
governing dismissal.
Consequently, in the circumstances of this
case, the fundamental question of Commu­
nity law is not whether the two-year quali­
fying period, per se, is long or short, nor
whether it promotes the interests of employees
or not, or is a reasonable or unreasonable
social measure. A measure such as that at issue
is of concern to Community law solely in so
far as it may introduce discrimination on
grounds of sex prohibited by Directive 76/207.
72. Where a measure, such as that at issue, is
in part subject to Community law, in my view
the Court has an obligation to review the
measure to that extent and the consequences
of any infringement of the principle of equal
treatment will be commensurate. In that case,
in other words, a ruling finding an infringe­
ment and its consequences must be confined
to that part, without touching upon the rest,
from the point of view of Community law at
least. That follows from the more general
principle that, in principle, invalidity of a part
does not automatically mean that the entire
measure is invalid, unless it is clear that the
whole cannot function without the invalid
part. Certainly it is the national court which
has jurisdiction to assess the extent of the
consequences of such a finding by the Court
in the framework of national law. However,
it would be useful to point out to the national
court the extent to which it is bound by a
ruling of the Court to that effect, in other
words, that it is not obliged by Community
law to regard the national measure as invalid
on all points, but should exercise its unfet­
tered jurisdiction.
73. Next, the way the contested measure oper­
ates must be clarified.
74. The measure at issue has two dimensions.
A substantive dimension, whereby it is per­
mitted to dismiss unfairly employees with less
than two-years' employment, even on grounds
referable to their sex, and A procedural dimen­
sion, whereby dismissal within the above
period gives employees no entidement to legal
protection even if they consider their dis­
missal to be the result of discrimination on
grounds of sex. Accordingly the contested
measure is, on the first point, directly con­
trary to Article 5 of Directive 76/207 (see
below under (a)), and on the second point is
directly contrary to Article 6 of that directive
(see below under (b)).
23 — Council Directive 75/129/EEC of 17 February 1975 on the
approximation of the laws of the Member States relating to
collective redundancies (OJ 1975 L 48, p. 29).
I-646
R v SECRETARY OF STATE FOR EMPLOYMENT, EX PARTE SEYMOUR-SMITH AND PEREZ
(a) Article 5 of the directive
75. Article 5(1) of the directive provides that
men and women are to be guaranteed the
same working conditions, including the con­
ditions governing dismissal, without discrimi­
nation on grounds of sex. In addition,
according to Article 5(2)(a), the Member States
are to take all the measures necessary to
ensure that any laws contrary to the principle
of equal treatment are abolished.
76. As has been consistently held, Article 5(1)
of the directive is sufficiently precise and
unconditional to be capable of being relied
upon by an individual before a national court
as against the State in order to exclude the
application of any national provision which
does not conform to that article. 24 In addi­
tion it must be accepted that Article 5(2), cited
above, also has the same character.
77. In this case the 1978 Act lays down, in its
fixed provisions, the right of employees not to
be unfairly dismissed. Formulated differently,
it requires the employer not to dismiss an
employee without lawful and fair reason. Dis­
crimination on grounds of sex does not con­
stitute such a reason, however. As stated above
(point 16), dismissal constituting an act of
discrimination within the meaning of the Sex
Discrimination Act 1975 entails payment of
additional compensation by the employer to
the employee wronged. It follows that, in its
fixed provisions, the 1978 Act regards dis­
missal on grounds referable to sex as an espe-·
cially serious case of unfair dismissal which is
not only prohibited but in addition is pena­
lised more heavily than other cases of unfair
dismissal.
78. The contested measure provides that the
right not to be unfairly dismissed is not
enjoyed by employees who have not com­
pleted two years' continuous employment for
the same employer. In other words, by intro­
ducing an exception to the fixed rules, it
enables the employer to dismiss an employee
without having to give a reason provided the
employee has not yet been employed for two
years. According to the applicants' written
observations, the Act expressly introduces
certain exceptions to the above exception,
with the consequence that there is a return to
the rule (that is to say, application of the fixed
provisions which do not provide for a quali­
fying period). Those cases are, for instance,
dismissal because of union activities (section
58(1)), dismissal because of pregnancy, mater­
nity and so forth. Among those exceptions
there do not appear to figure grounds refer­
able to sex, and neither the United Kingdom
Government nor the other parties who have
submitted observations make any assertion
to the contrary. Consequently, by contrary
24 — Case 152/84 Marshall I [1986] ECR 723, paragraphs 52 and
55; Case C-188/89 Foster and Others [1990] ECR I-3313,
paragraph 21; Case C-345/89 Stoeckel [1991] ECR I-4047,
paragraph 12. Moreover, Article 5(1) may be pleaded against
a public sector body in order to obtain compensation for
infringement of the directive (Foster, paragraph 22). It may
not, however, be relied upon against private employers
except when the employer is the State (Marshall I, paragraph
48).
I-647
OPINION OF MR COSMAS — CASE C-167/97
inference, it must be accepted that the 1978
Act a priori regards as not unfair, and conse­
quently allows, dismissal of an employee even
if it takes place for reasons directly or indi­
rectly referable to sex, provided that dismissal
occurs before completion of two years'
employment.
79. Such a construction is, however, directly
contrary to Article 5(1) of the directive. That
conflict is fundamental and does not depend
on the facts of each case nor is there a need
for indirect evidence. In particular:
80. First, it does not depend on whether the
employee wronged is a woman or aman,
given that equal treatment concerns both
women and men. A male employee could
equally well find himself in a position analo­
gous to that of the present applicants as the
following example will show. Let us suppose
that, because the messenger who delivered
documents, supplies and so forth in the first
applicant's company has retired, the manager
allocates that work to a newly-engaged male
administrative employee despite the fact that
there are women available at the same level or
lower than him, on the ground that it is a
man's work; because he protests, the employee
is dismissed. Proceedings in which the
employee concerned complains that he has
suffered discrimination on grounds of sex are
rejected as inadmissible, in reliance on the
measure at issue. Howcan the employee in
question protect himself? Should he perhaps
argue that the two-year qualifying period
adversely affects him because it works to the
detriment ofwomen, and should the question
whether the complaint is well founded depend
on whether themeasure affects 'considerably
more' women or not? I consider such a view
to be absurd and inconsistent. The incon­
gruity of such a construction reveals, I believe,
the fundamentally flawed nature of the mea­
sure at issue and the need for equal protec­
tion of persons wronged of both sexes.
81. Secondly, that conflict is direct and easily
ascertainable on the basis of legal consider­
ations alone. 25 Consequently, there is no need
for anyone to have recourse to indirect evi­
dence, that is to say to the investigation of
statistical evidence which might reveal which
sex is comparatively most adversely affected.
Let us in fact imagine that the relevant statis­
tical evidence over a certain period does not
show a 'large' or 'considerable' disparity in
percentage terms between the sex affected and
that not affected, or shows that both sexes are
similarly affected. Should we conclude in such
a case that the national measure is consistent
with the directive?
The answer is certainly no. A national mea­
sure which, on a proper construction, allows
an employer to dismiss an employee on
grounds referable to sex may in no way be
legitimated by the fact that there is no sig­
nificant disparity between the percentages of
men and women employees affected.
25 — In that respect, it is similar to direct discrimination on
grounds of sex.
I-648
R v SECRETARY OF STATE FOR EMPLOYMENT, EX PARTE SEYMOUR-SMITH AND PEREZ
82. Lastly, the above conflict is inherent in
the measure, in the sense that it does not
depend on the specific length of the quali­
fying period. Article 5 does not permit any
period to be laid down within which an
employee is not permitted to assert the rel­
evant Community right. The directive in fact
protects employees against discrimination on
grounds of sex even before they are engaged,
in other words from the time when they apply
for employment. 26 Consequently, in view of
the broad construction given to the term 'dis­
missal' 27 it must be recognised that dismissal
on grounds of sex is prohibited however short
the length of employment of the person con­
cerned might have been.
83. I should like to enlarge somewhat upon
that point because the impasse to which the
solution of 'indirect discrimination' being
pressed upon us by the parties leads will thus
become more apparent.
84. As is clear from the background to the
case and the hearing, after the Industrial Tri­
bunal had refused to register the applicants'
complaints, the procedure before the other
United Kingdom courts took on the char­
acter of a collateral review of the compliance
of the national measure with Community law.
The applicants are challenging the validity of
the last variation in 1985 by which the length
of the qualifying period was extended to two
years, arguing that the measure at issue con­
stitutes indirect discrimination against women
because statistical evidence shows that it
(potentially) affects a larger number of women
than men.
85. According to a statement made during
the hearing by the Agent of the United
Kingdom, which was not disputed, the appli­
cants are seeking to have the measure at issue
set aside as contrary to Community law so
that the one-year qualifying period applicable
before 1985 will apply to them. 28 That, of
course, is understandable, in view of the fact
that these particular applicants, who were
employed for a period longer than one year,
would benefit from such an outcome, 29 since
each applicant's dismissal could finally be
assessed on the merits by the Industrial Tri­
bunal, and a decision reached as to whether
it was unfair, on the same conditions as apply
to employees who have been dismissed after
two years' employment.
26 — See Case C-180/95 Draehmpaehl v Urania Immobilienser¬
vice [1997] ECR 2195, paragraph 24, which concerned com­
pensation in a case where a male job applicant had not been
selected on grounds of his sex.
27 — See point 47 above.
28 — It should be pointed out, however, that the same Agent,
when asked wnether that would in fact be the consequence
in domestic law or whether, on the contrary, there would no
longer be any qualifying period, stated that he did not know.
29 — Despite the fact that there is no evidence concerning the size
of the undertakings in which the applicants were employed,
it must be presumed that they employed more than 20 per­
sons. Before 1985 in fact, the qualifying period was two
years for employees in small undertakings (less than 20 per­
sons) and one year for employees in large undertakings
(above 20 persons) — see point 18 above. If the applicants
were employed in a small undertaking they would not have
challenged the 1985 Order because if it was set aside and the
previous rule revived that would not help them at all.
I-649
OPINION OF MR COSMAS — CASE C-167/97
86. If it is accepted that the two-year require­
ment at issue constitutes discrimination in
view of the percentages relied upon by the
applicants, that will give rise to the following
paradox. As is clear from the order for refer­
ence, and was confirmed by the United
Kingdom Agent at the hearing, the difference
in the percentages of men and women affected
by the measure at issue as it now stands does
not differ substantially from the difference in
the percentages ascertained at a time when
the pre-1985 version was in force.
If, however, the requirement at issue had the
same repercussions, by analogy, both before
1985, when the qualifying period was one
year, and after 1985, when it was extended to
two years, then the problem does not lie in
the specific length of the qualifying period but
in the fact that it was Uid down at all. That
finding, regardless of any other possible reper­
cussions, 30 supports, I believe, the view put
forward above, because it indicates that the
problem with the rule at issue is more fun­
damental and goes beyond the framework in
which the applicants seek to confine it.
87. Moreover, if the defect in a measure such
as that at issue lies in the adoption of a quali­
fying period per se, the adoption of a quali­
fying period suffered from the same defect all
along and the measure at issue is contrary to
Article 5(2)(a) of the directive. That is because,
in 1985, not only did the United Kingdom
fail to abolish the qualifying period in ques­
tion as it was obliged to do, but further
extended its length.
(b) Article 6 of the directive
88. As has been held, Article 6 of the direc­
tive requires the Member States to take suf­
ficiently effective measures to achieve the aim
of the directive, so that the persons concerned
may profitably rely on those measures before
national courts. In addition, that article con­
stitutes the expression of a general principle
of law underlying the constitutional tradi­
tions common to the Member States which is
also laid down by Articles 6 and 13 of the
Convention for the Protection of Human
Rights and Fundamental Freedoms of 4
November 1950. By virtue of Article 6 of the
directive, interpreted in the light of that prin­
ciple, all persons have the right to obtain an
effective remedy in a competent court against
measures which they consider to be contrary
to the principle of equal treatment laid down
in Directive 76/207. 31
30 — If the Court adopted the applicants' views, it would, sooner
or later, be called upon to review the requirement of one
year (not to mention the intermediate system which applied
prior to 1985 in respect of employees in small ana large
undertakings — see above, point 18), subsequently the sixth-
month requirement, and so forth. That demonstrates, I
believe, the absurdity of attempting to draw conclusions as
regards the nature of a measure such as that at issue from
statistics concerning its possible repercussions. 31 — Case 222/84 Johnston [1986] ECR 1651, paragraphs 17 to 19.
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R v SECRETARY OF STATE FOR EMPLOYMENT, EX PARTE SEYMOUR-SMITH AND PEREZ
89. The measures which the Member States
are obliged to take in that connection must
include an effective system of penalties against
the employer in order to have a real deterrent
effect. Even though the directive does not
prescribe the adoption of specific penalties,
but leaves Member States free to choose
between different solutions, it has been held
that they may include measures requiring the
employer to offer a post to the candidate dis­
criminated against or to ensure reasonable
financial compensation, backed up where nec­
essary by a system of fines. 32
90. Thus, in Johnston, the Court held that a
legal provision to the effect that a ministerial
certificate stating that the conditions for dero­
gating from the principle of equal treatment
for men and women for the purpose of pro­
tecting public safety was to be treated as con­
clusive evidence was contrary to Article 6. 33
91. However, the requirements of Article 6
as regards real and effective judicial protec­
tion mean that account must be taken of the
particular circumstances of each breach of the
principle of equality. In particular, in the event
of discriminatory dismissal contrary to Article
5(1) of the directive, it has been held that a
situation of equality could not be restored
without either reinstating the victim of dis­
crimination or, in the alternative, granting
financial compensation for the loss and damage
sustained. 34
92. Lastly, as the Court has held, Article 6 is
clear and unconditional and those adversely
affected may rely on it before national courts
against a national measure which is contrary
to it. 35
93. In the present case, the fixed provisions
of the 1978 Act contain a complete system of
legal protection and sanctions against
employers which, per se, is wholly consistent
with the directive. However, one category of
dismissed employees cannot take advantage
of it because of the procedural consequence
of the measure at issue. As already explained,
that procedural consequence consists in the
fact that dismissed employees who have not
completed two years' employment are not
entitled to appear before a court to claim that
they have been the victims of discrimination
on grounds of sex. For that reason such com­
plaints by dismissed employees to the Indus­
trial Tribunal cannot be registered. In fact, as
the court of reference emphasised, 'it is not
disputed but that for the requirement of two
or more years' continuous employment ("the
two-year rule") the industrial tribunal would
have had jurisdiction to entertain the appli­
cants' claims'.
32 — See Case 14/83 Von Colson and Kamann [1984] ECR 1891,
paragraph 18 et seq.; Case C-177/88 Dekker [1990] ECR
I-3941, paragraph 23; Case C-271/91 Marshall II [1993]
ECR I-4367, paragraphs 22 to 24; Draehmpaebl, cited above
in footnote 26; and others.
33 — Johnston, cited in footnote 31, paragraph 21.
34 — Marshall II, cited in footnote 32, paragraph 25.
35 — See Von Colson, cited in footnote 32, paragraph 22; Case
248/83 Commission v Germany [1985] ECR 1459, paragraph
10; and Marshall 11, cited in footnote 32, paragraph 35.
I-651
OPINION OF MR COSMAS — CASE C-167/97
94. Of course, in this case, the court hearing
the case, before it can deal with the substan­
tive issue and decide whether the dismissal in
question constitutes discrimination on
grounds of sex, will have to determine first
whether the measure at issue is contrary to
Community law. Only in the affirmative may
the court lay that question aside and proceed
to examine the substance of the case.
95. That complication does not, however,
affect us here. The protection of Article 6
would become a dead letter if the persons
concerned could not put forward all the pleas
and arguments, substantive and procedural,
on the basis of which they consider them­
selves to be the victims of discrimination on
grounds of sex. Those arguments may be
legally or substantively without foundation,
when they will be rejected by the court. They
may not, however, be regarded as inadmis­
sible in principle. In fact it does not make
sense to reject an action or the submission of
a particular plea as procedurally inadmissible
on the ground that precisely the legal require­
ment challenged by the action or plea is
lacking. That is to beg the question and leads
to a denial of legal protection.
96. It is also irrelevant that, after repeatedly
seeking a legal remedy, the applicants man­
aged to place before the courts at least one
aspect of their problem, that is to say, the
compliance of the requirement at issue with
Community law. An important aspect of the
effective judicial protection of the rights con­
ferred by Community law is that it should be
provided at the appropriate time, and at the
earliest possible stage of the proceedings, so
as to avoid waste of time and money on the
part of those concerned in seeking a judicial
remedy. For that reason, Article 177 of the
Treaty enables any court or tribunal of what­
ever level to turn to the Court for elucidation
of questions of interpretation of a Commu­
nity nature.
As is clear from the hearing, if the Court
finds the measure at issue to be contrary to
Community law, the case will return to the
House of Lords which, in turn will refer the
case back to the Industrial Tribunal to be
heard on the merits. That means, at best, that
the Industrial Tribunal will decide on the
validity of the applicants' dismissal approxi­
mately 10 years after the dismissals took place.
Thus it is not impossible that the applicants
will meet with significant difficulty in proving
the dismissals to have been unfair, since it
may be that the undertaking no longer exists,
the relevant evidence may have been destroyed
and witnesses may have left their employ­
ment. In such circumstances there is the risk
that the employees wronged will be discour­
aged from seeking legal protection.
For those reasons I consider that, in so far as
the measure at issue prevents the competent
national court from providing effective legal
protection to a dismissed employee who claims
to have been the victim of discrimination on
grounds of sex, and further prevents use of
the possibility provided for in Article 177 of
the Treaty, it is contrary to Article 6 of the
Directive, as interpreted in the light of the
I-652
R v SECRETARY OF STATE FOR EMPLOYMENT, EX PARTE SEYMOUR-SMITH AND PEREZ
more general principle mentioned above and
Article 177 of the Treaty. 36
97. It must be stressed, moreover, that the
conflict between the measure at issue and
Article 6 of the Directive is just as funda­
mental as the conflict with Article 5. Conse­
quently, for the reasons set out above (points
79 et seq.) it is not connected with the sex of
any particular person affected, with the per­
centages of men and women employees or
with a particular length of employment.
98. I have examined the two aspects of the
measure at issue separately for mainly prac­
tical reasons. However, the substantive and
procedural aspects of a right are two sides of
the same coin. It is, furthermore, clear that
for that reason the measure at issue leads the
employee into a vicious circle: if he has not
completed two years' employment he cannot
put his case before a court; and because he
cannot put his case before a court he is not
able to prove that he was a victim of discrimi­
nation on grounds of sex because of the two-
year rule.
99. The consequence of the partial conflict of
the measure at issue with Articles 5 and 6 of
the directive is that the national courts will
have to set it aside so that, on the one hand,
proceedings brought by dismissed employees
in which an issue of unequal treatment on
grounds of sex arises will be held admissible
and, on the other hand, the question whether
each particular dismissal was due, directly or
indirectly, to sex discrimination will be exam­
ined as to its merits.
100. I do not regard as justified the fear
expressed by the applicants that, because Arti­
cles 5 and 6 do not have direct horizontal
effect, Directive 76/207 cannot be pleaded
against the employer and, consequently, does
not provide as effective a means as Article 119
of the Treaty. 37
In Case C-421/92 Habermann-Beltermann, a
national law provided that night-time work
by pregnant women was prohibited; a preg­
nant employee on night shifts was dismissed
when it became known that she was pregnant
at the time when she was engaged, in reliance
on provisions which allowed an employment
contract to be terminated on the ground that
it was void, or on account of mistake. The
defendant employer considered that because
Directive 76/207 did not have horizontal
effect, it could not be pleaded against the
employer. In its judgment, 38 the Court
36 — See, inter alia. Case C-213/89 Factortame and Others [1990]
I-2433, paragraph 18 et seq. and Joined Cases C-430/93 and
C-431/93 Van Schįndel and Others [1995] ECR I-4705,
paragraph 18. See also the judgment in Case 61/81 Commis­
sion v United Kingdom [1982] ECR 2601, which concerns a
defective transposition of Article 6 of Directive 75/117.
37 — Perhaps the applicants arc afraid that, not beine able to rely
on the directive against the employer, they will be obliged
to claim compensation from the Member State on the ground
that the directive has been wrongly implemented in accor­
dance with the case-law initiated by Francovich 1 (Joined
Cases C-6/90 and C-9/90 [1990] ECR I-5357).
38 — [1994] ECR I-1657.
I-653
OPINION OF MR COSMAS — CASE C-167/97
rejected that argument, holding that the ques­
tion referred to it concerned the interpreta­
tion of a directive that had already been
transposed into national law and was designed
to assist the national court in interpreting and
applying the provisions at issue concerning
the invalidity of contracts and mistake (para­
graph 9).
Similarly, in this case, if the provisions at issue
are removed, by virtue of the vertical effect of
Articles 5 and 6 of the directive, it will be the
fixed provisions of the 1978 Act that will be
applicable for the rest in domestic law. Those
provisions, interpreted in the light of the
directive, provide sufficient protection to
employees who consider themselves to have
been dismissed unfairly on grounds of sex, as
already stated. In view of the fact that any
penalties imposed, in the event of a successful
action brought by the person affected, will be
arrived at on the basis of national law, no
question of the 'horizontal effect' of the direc­
tive can arise.
101. Consequently, when the competent
national court proceeds to examine the merits
of the cases, it must examine the grounds of
each dismissal separately, from the point of
view of whether it was based on sex, in which
case the dismissal must be regarded as unfair. 39
In the contrary case, if, that is to say, the
grounds of dismissal are unrelated to sex, the
action may be dismissed. That is because, as
already explained, to that extent the national
measure pursues an objective outside the
ambit of Community law and, consequently,
outside the scope of Directive 76/207.
102. In addition, if no reasons are given for
the dismissal (where, for instance, the
employer, as a result of the formulation of the
provision at issue, has put into effect a system
of dismissal lacking in transparency), the pro­
visions of the 1978 Act will have to be inter­
preted in the light of the Court's case-law,
applied by analogy, in relation to the burden
of proof regarding discrimination by the
employer in putting into effect a system of
pay lacking in transparency. Hence if the
employee shows that, among those dismissed
with no reason, or for the same reason, women
considerably outnumber men, the employer
must show that his practice does not involve
discrimination, otherwise there is an infringe­
ment of the principle of equal treatment. 40
103. On that point I have to express some
perplexity. It has been stated by a British
writer that dismissal, inter alia, in infringe­
ment of the Sex Discrimination Act 1975
(hereinafter 'the SDA') is not subject to the
1978 Act's two-year rule and the person dis­
missed may seek satisfaction on the basis of
39 — See Dekker, cited in footnote 32, paragraph 10. 40 — Sec Case 109/88 Danfoss [1989] ECR 3199, paragraph 11.
I-654
R v SECRETARY OF STATE FOR EMPLOYMENT, EX PARTE SEYMOUR-SMITH AND PEREZ
the SDA. 41 In addition, as noted above (see
footnote 15), in Case C-13/94 P. v S., despite
the fact that dismissal on account of gender
reassignment occurred before completion of
two years' employment (paragraphs 3 and 4),
the Industrial Tribunal examined the merits
of the case, apparently by reference to the
S. D. A. (paragraph 7).
Of course the questions whether the 1978
Act is applied in a particular way in relation
to the S. D. A., whether the two Acts are
applied cumulatively or not, whether the 1978
Act provides greater protection, and so forth,
are for the national courts to decide. More­
over, the national courts will have to interpret
the national provisions adopted before and
after Directive 76/207 consistently with the
latter, and where this is not possible, disapply
the national provisions. 42
It should, however, be pointed out that if the
provisions of the 1978 Act at issue must be
construed to the effect that dismissal on
grounds of sex does not fall under the two-
year rule, with the consequence that the dis­
missed employee may complain to the com­
petent court and seek satisfaction on the basis
of the fixed provisions of the 1978 Act, then
the measure at issue cannot be regarded as
contrary to the provisions of Directive 76/207.
That is because a legislative measure which,
on the one hand, ensures that the dismissal of
an employee within the qualifying period of
two years may not take place on grounds of
sex, and on the other hand organises a system
of penalties against the employer and a system
of full legal protection of the persons wronged
by any discrimination on grounds of sex,
constitutes a general legislative measure which
lays down a condition governing dismissal
applicable without distinction to men and
women. Such a measure is not contrary to
any provision of Directive 76/207. 43 In that
case, the problem does not arise at the level
of the Act but in practice; in other words the
only issue is whether the criterion was applied
in a manner which led in fact to discrimina­
tion. 44
F — The issue of indirect discrimination
104. I have already explained why I do not
accept the basis of the parties' reasoning. I
shall examine below certain aspects of that
reasoning, principally in order to clarify, by
41 — See S. D. Anderman, The Law of Unfair Dismissal, 2nd ed.,
London, Butterworths, 1985 (p. 17, footnote 17(iv))
— without, however, reference to any provisions or other
explanation. Nevertheless, other writers do not make similar
mention as regards the exceptions to the two-year rule (see
Sweet & Maxwell's Encyclopedia of Employment Law, para­
graph 1-6103 et seq.), but examine the judgment of the Court
of Appeal in the present case in the context of indirect dis­
crimination on grounds of sex under the Sex Discrimination
Act (ibid., paragraph 1-4003 (4)).
42 — See Case C-334/92 Wagner Miret [1993] I-6911, paragraphs
20 and 21; Coloroll, cited in footnote 16, paragraph 29; and
others. I examined the requirement for an interpretation
consistent with Community law fairly exhaustively in my
Opinion of 14 May 1998 in Case C-125/97 Regeline [1998]
ECR I-4493 (paragraphs 33 to 35), to which I would refer
to avoid repetition.
43 — See Roberts, cited above in footnote 13 (paragraph 36), and
Case C-400/95 Larsson [1997] ECR I-2757, paragraph 18.
44 — See Commission v Germany, cited in footnote 35, paragraph
22.
I - 655
OPINION OF MR COSMAS — CASE C-167/97
contradistinction, what I believe to be the
correct view, but also to cover the possibility
of the Court preferring to take that second
course.
105. It should be recalled that, according to
the applicants and the Commission, the mea­
sure at issue entails indirect discrimination
against women, since it concerns a compara­
tively greater number of women than men,
and is not objectively justified. The United
Kingdom Government takes the contrary
view.
106. There is no doubt that the contested
two-year qualifying period applies without
distinction to men and women with less than
two years' employment and, consequently,
does not constitute direct discrimination on
grounds of sex. Consequently, consideration
must be given to whether the provision at
issue introduces indirect discrimination, as
the applicants and the Commission maintain.
107. As the Court has consistently held, dis­
crimination arises through the application of
different rules to comparable situations or the
application of the same rule to different situ­
ations. 45 Indirect discrimination arises where
a national measure, albeit formulated in neu­
tral terms, works to the disadvantage of far
more women than men. 46
108. Given that, in the case of measures which
are, at first sight, neutral, it is difficult both to
identify possible discrimination and for those
affected to furnish proof, the Court's case-law
has elaborated certain criteria concerning the
detection of discrimination and the distribu­
tion of the burden of proof. In addition, as
the Court has pointed out, identification of
indirect or covert discrimination 'implies com­
parative studies of entire branches of industry
and therefore requires, as a prerequisite, the
elaboration by the Community and national
legislative bodies of criteria of assessment'. 47
109. The case-law concerning the criteria gov­
erning, and proof of, indirect discrimination
was set in motion by Jenkins, 48 the locus clas-
sicus, and is now settled. 49 That case, and
many of the cases that followed, interprets
Article 119 of the Treaty in respect of a com­
plaint of discrimination in treatment as regards
pay of employees who work part-time (mainly
women) as against employees working full-
time (mainly men).
45 — See Case C-100/95 Hording [1997] ECR I-5289, paragraph
14; Case C-279/93 Schumacker [1995] ECR I-225, paragraph
30.
46 — See Kording, cited in the above footnote, paragraph 16.
47 — Case 129/79 Macarthys v Smith [1980] ECR 1275, paragraph
15. Sometimes identification of indirect discrimination
requires investigation in the context 'even of the economic
system as a whole' (Defrenne II, cited in footnote 22, para­
graph 19).
48 — Cited in footnote 3.
49 — See Bilka, cited in footnote 21; Case 171/88 Rinner-Kühn
[1989] ECR 2743; Kowalska, cited in footnote 7; Case
C -457/93 Lewark [1996] ECR I-243, and so forth.
I-656
R v SECRETARY OF STATE FOR EMPLOYMENT, EX PARTE SEYMOUR-SMITH AND PEREZ
110. Moreover, in its judgment in Gerster,
the Court applied the above case-law as it has
developed to a case falling under the scope of
Directive 76/207, namely a legislative provi­
sion which put workers into a disadvanta­
geous position if they worked part-time in
relation to workers who worked full-time for
the purposes of length of service with a view
to promotion. 50
111. Where unequal treatment is connected
with legislative provisions as in this case, the
Court has stated: '[s]ince a difference in treat­
ment has been found to exist,... if it were the
case that a much lower proportion of women
than men work full-time, the exclusion of
part-time workers from certain benefits would
be contrary to Article 119 of the Treaty where,
taking into account the difficulties encoun­
tered by women workers in working full-
time, that measure could not be explained by
factors excluding any discrimination on
grounds of sex'. 51
112. Since the case-law concerning discrimi­
nation in respect of pay against employees
working part-time constituted the model for
the case-law in the other areas as well, I would
first point to certain characteristics of the
above case-law and then examine whether and
under what circumstances it may be applied
to the present case.
113. It should be noted, first of all, that
Community law equates indirect with direct
discrimination on grounds of sex according
to result. Consequently, even if evidence of
indirect discrimination is necessarily itself
indirect, nevertheless the aim is that the court
should form a conviction as to the existence
of discrimination that is, as far as possible,
just as cogent as it would be in a case of
direct discrimination. To that end statistics
alone do not suffice, since by their nature
they are likely to vary and be in general
unsafe, whereas the most objective founda­
tion possible for the assessment is required.
114. The case-law under examination is based
on the finding that women employees 'because
of household and family duties for which they
are frequendy responsible, are not as able as
men to organise their working time flex­
ibly'. 52 That finding, which is a fact of
common experience, is the objective founda­
tion for the assessment of indirect discrimina­
tion in the above situation.
50 — Cited in footnote 11, paragraph 34, which refers to Bilka,
Rinner-Kühn and Lewark. In the intervening period the
Court had already imported that case-law into the area cov­
ered by Directive 79/7 on the progressive implementation of
the principle of equal treatment for men and women in mat­
ters of social security (OJ 1979 L 6, p. 24) (see Case C-229/89
Commission v Belgium [1991] ECR I-2205, paragraph 13,
with reference to Kowahka), which from then on was setded
in that area too (see De Weerd and Others, cited in footnote
21). We may thus speak of a general principle running
through Community social law in the area of equal treat­
ment of men and women.
51 — See wier alia, Lewark, cited in footnote 49, paragraph 28. 52 — See Danfoss, cited in footnote 40, paragraph 21.
I-657
OPINION OF MR COSMAS — CASE C-167/97
115. Consequently it must be determined
whether there is in fact different treatment of
employees working full-time and those
working part-time, or whether the difference
complained of is only apparent. If the latter
is the case, the investigation is concluded at
that stage and there is no examination either
of numerical facts or as to whether the mea­
sure is objectively justified. 53
116. If there is a difference in treatment, the
Court, basing itself on evidence from the
documents in the case, examines the propor­
tion of men and women within each of the
two groups and compares the results. If, as
anticipated, the percentage of women in the
group of part-time workers is 'considerably
higher' than the percentage of men and/or the
percentage of women in the group of full-
time workers is considerably lower than the
percentage of men, 54 then the measure is
regarded 'in principle' 55 as contrary to the
principle of equal treatment.
As an indication, the case-law has expressly
or tacitly considered that there was 'a signifi­
cant difference' with regard to the following
percentages:
— in Case 171/88 Rinner Kühn, in the cat­
egory of part-time workers 89% were
women and 11 % men. 56
— in Case C-33/89 Kowalska, in the category
of part-time workers the percentages for
women were 77.3%, 97.8% and 90.2%
according to service and hours worked
per week. 57
— in Case C-184/89 Nimz, in the same cat­
egory the percentages of women were
77.3% and 90.2% according to hours
worked per week, whereas the percentage
of women in the category of full-time
workers was 55%. 58
— in Case C-127/92 Enderby, 98% of
employees in the allegedly disadvantaged
53 — Case C-78/93 Helmig [1994] ECB. I-5727, paragraphs 23, 30
and 32.
54 — Bilka, cited in footnote 21, at paragraph 29. In my view, in
order to determine whether there is a 'significant difference'
in the percentages within a group, account should also be
taken of the proportions in the other (advantaged) group.
The advantaged group will have to show either the contrary
tendency, or equal percentages, or the same tendency but
much more weakly in relation to the first group. If the dif­
ference in percentages is in fact identical or similar in both
groups, employees in both groups are receiving the same
rather than unequal treatment (see the third and fourth cases
immediately below).
55 — Rinner-Kühn, cited in footnote 49, paragraph 12.
56 — Cited above, in footnote 49, paragraph 11, in conjunction
with point 111(2) of the Report for the Hearing and point 31
of the Opinion of Advocate General Darmon.
57 — Cited in footnote 7, paragraph 13, in conjunction with point
3 of Advocate General Darmon's Opinion.
58 — Footnote 16, paragraph 12, in conjunction with Point II of
the Report for the Hearing.
I-658
R v SECRETARY OF STATE FOR EMPLOYMENT, EX PARTE SEYMOUR-SMITH AND PEREZ
category were women, whilst in the alleg­
edly advantaged category there were fewer
women, or very slightly more women. 59
— in Case C-100/95 Kording, 92.5% of
employees working part-time were wom­
en. 60
— in Case C-243/95 Hill, of employees working
on a job-sharing basis, the category suf­
fering unfavourable legal treatment, 98%
to 99.2% were women. 61
117. Moreover, in order that employees who
are prima fade the victims of discrimination
should not be deprived of any effective means
of ensuring that the principle of equality is
adhered to, the case-law shifts the onus of
proof, so that a measure which has in practice
an adverse impact on substantially more mem­
bers of one or other sex is regarded as con­
trary to Article 119 of the Treaty, unless the
party bearing that onus shows that the mea­
sure is objectively justified. 62
118. The fact that a provision is regarded as
contrary 'in principle' or 'prima facie' to the
principle of equal treatment means that it is
presumed to be contrary to Community law
provided it is not objectively justified, and
examination of that question constitutes the
final stage of the investigation. Thus, if the
measure is objectively justified, 'the mere fact
that the provisions affect far more women
than men cannot be regarded as constituting
an infringement of Article 119'. 63
119. From the foregoing it follows that deter-
mination of the question of indirect discrimi­
nation constitutes a complex assessment which
takes account of objective and numerical fac­
tors alike. The percentages per se are not of
absolute but rather of relative value, which
follows from their relationship to all the other
factors to be taken into account. Above all,
they are an indication, not proof, of discrimi­
nation.
120. Accordingly, in order to determine
whether there is indirect discrimination in the
present case, consideration must first be given
to whether the provisions at issue foster
unequal treatment as between two categories
of employees and whether that affects a con­
siderably higher number of women than men.
Only if the answers to those questions are in
the affirmative does the question arise of the
existence of objective factors unrelated to any
form of discrimination which may justify the
59 — [1993] ECR I-5535, paragraph 16, in conjunction with point
31 of the Opinion of Advocate General Lenz.
60 — Cited in footnote 45, paragraph 18. It should be noted that
this judgment applies Directive 76/207.
61 — Case C-243/95 Hill [1998] ECR I-3739, paragraph 25.
62 — See Enderby, cited in footnote 59, paragraph 14.
63 — Rinner - Kühn, cited in footnote 49, paragraph 14, and Kording,
cited in footnote 45, paragraph 26.
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OPINION OF MR COSMAS — CASE C-167/97
difference in treatment that has been estab­
lished. 64
121. As regards the first question, it should
be noted that the provision at issue does not
introduce different treatment for men and
women within the same category, but between
employees who belong to two different cat­
egories, in other words between those who
have less and those who have more than two
years' employment.
122. As regards the second question, from
the statistical evidence covering the period
1985-1991, relied on by the applicants and set
out in the order for reference, the following
is apparent:
The percentage of men with less than two
years' employment ('those affected') in the
entire male workforce was 22.6% in 1985 and
progressively increased to 28% in 1989, sub­
sequently reducing by degrees to 25.5% in
1991. In the same years the corresponding
percentages of women with less than two
years' employment in relation to working
population was 31%, 34.5% and 32.6%.
On the other hand, the percentage of men
with more than two years' employment ('those
advantaged') in relation to all men was, for
the corresponding years: 77.4%, 73.4% and
74.5%, whilst the corresponding percentages
for women were 68.9%, 65.6% and 67.4%.
Lastly, before 1985, the percentage of men
with less than two years' employment was
13.8% of all male employees, whereas the
corresponding percentage of women was
19.2%.
From those figures the applicants and the
Commission conclude that women are com­
paratively worse affected than men; 65 the
Court of Appeal reached the same conclu­
sion. Conversely, the United Kingdom Gov­
ernment considers that such a conclusion does
not follow from those statistics; that view was
also taken by the Divisional Court.
64 — See Helmig, cited in footnote 53, paragraphs 23 and 25.
65 — It should be pointed out that the number of women affected
in addition, on which the applicants relied in their written
observations and at the hearing, although deserving of sym­
pathy, cannot however be taken into consideration. That is
because the essentia] point here is the relationship between
the percentages and not the absolute numbers per se. To cite
Aristotle: 'because nothing is called "great" or 'small' as
such and by itself, but by comparison to another [thing] ...
so the comparison must be to another [thing]; ... "great",
"small" and the like signify not a quantity but a relation,
because we consider them in relation to another [thing]; it is
obvious, then, that these terms are relative' (Categories, 5b
16-29).
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R v SECRETARY OF STATE FOR EMPLOYMENT, EX PARTE SEYMOUR-SMITH AND PEREZ
123. I must state straight away that I have
considerable reservations in respect of the
adequacy and significance of that statistical
evidence.
124. First of all, the method by which the
calculations are arrived at is not correct and
does not permit the necessary comparisons.
In reality, according to the above case-law,
applied by analogy, it should be possible to
deduce from the statistics, first, the propor­
tion in each group of male and female workers.
Such evidence exists only for 1985, whereas
for the remaining periods only the percentage
of those affected of each sex of the total
number of workers of that sex is given. If,
however, the make-up of each group is
unknown, it is not possible to draw a conclu­
sion as to which sex is affected to a compara­
tively greater degree. From the evidence
adduced, it appears simply that, both before
and after 1985, there was a stable relationship
between those affected and those not affected
per sex and that the factors giving rise from
year to year to an increase or decrease in the
percentage of one sex influence the percent­
ages for the other sex in approximately the
same way.
125. Secondly, the statistical evidence sub­
mitted concerns employees who are poten­
tially affected by the measure, not those who
are actually adversely affected, that is to say,
those dismissed. Where a national measure
grants a financial advantage the sole criterion
being the performance of full-time work, all
employees 'working full-time will obtain the
advantage, whereas all employees working
part-time will be deprived of the advantage.
Moreover, the advantage is specific and easily
determined. In such a case, it suffices to know
how many members there are in each group
(in other words, how many are potentially
affected by the measure) in order to know as
well how many are affected in practice (in
other words, how many have their pay
increased or reduced).
Conversely, in the present case, the advantage
given to the favoured group is not immedi­
ately determinable, but consists, as far as that
group is concerned, in the obligation of the
employer (reflecting the right of those
employees) to give lawful reason for any dis­
missal and, as far as the other group is con­
cerned, in the employer's discretion to dis­
miss those employees without fair reason
(reflecting those employees' lack of a right).
In that case, it is not known in advance how
employers will exercise their discretion or
fulfil their obligation and consequently how
the measure will affect employees in practice.
Consequently, in order to determine the actual
repercussions of a measure such as that at
issue in a given period, there must be apparent
at least (a) the percentages of men and women
with less than two years' employment at that
time and (b) the percentages of men and
women who were dismissed during the same
period. Only if the percentage of women dis­
missed is considerably greater than the cor­
responding percentage of men dismissed, in
relation to the percentage of women and men
with less than two years' employment, can
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OPINION OF MR COSMAS — CASE C-167/97
there, in prinaple, be a question of indirect
discrimination against women.
However, there can be no thorough examina­
tion if account is not also taken of the reper­
cussions of the measure on the group which
appears each time to be advantaged, taking
the circumstances into account. In this case,
the advantaged group appears to be the group
of employees with two or more years' employ­
ment. If the results of the investigation of that
group correspond to the figures for the group
affected, then the measure at issue cannot be
responsible for the statistical evidence adduced
and the causes must be sought elsewhere.
Lastly, account must also be taken of the
repercussions of the measure as it applied
before 1985. That is because, if the percent­
ages turn out to be the same in the two cases,
as they do here, 66 then, perhaps, it is not the
measure's specific length of two years but the
adoption of a qualifying period per se which
gives rise to the problem.
126. My third reservation consists in the fact
that there have not been submitted, nor do
there appear in the file, substantive grounds
related to sex which, in conjunction with the
statistics, show the difference in treatment to
be 'discrimination on grounds of sex'. The
applicants repeatedly claimed that, in the light
of the statistics which they had adduced, the
measure at issue constituted such discrimina­
tion 'by its very nature'. I have expressed the
view above, however, that statistics alone do
not constitute proof, and a more objective
foundation is required for a determination of
unequal treatment. 67
127. I come finally to the question of how
considerable the difference in the percentages
is. The available evidence for 1985 shows as
follows. Of a total of 18.73 million employed
persons in the United Kingdom, 11.41 mil­
lion (or 61%) were men and 7.32 million (or
39%) women. Those who had been in employ­
ment for more than two years numbered
13.92 million, of whom 8.85 million were men
(or 63.5%) and 5.07 million women (or
36.5%). Those who had been employed for
less than two years numbered 4.81 million, of
whom 2.56 million (or 53.2%) were men and
2.25 million (or 46.8%) women.
Those statistics, for the reasons I have already
explained, concern solely one limb of the
comparison and, consequently, are insuffi­
cient from the point of view which interests
us here. At all events, even were it to be con­
sidered that that evidence was very signifi­
cant, I would make the following observa­
tions. From the evidence in question it appears
in fact that the percentage of women
employees with less than two years' employ­
66 — See point 86 above. 67 — See paragraphs 113 and 114 above.
I-662
R v SECRETARY OF STATE FOR EMPLOYMENT, EX PARTE SEYMOUR-SMITH AND PEREZ
ment as against men in the same category has
increased in relation to the corresponding
percentage in the category of employees with
more than two years' employment. It is, of
course, for the national court to assess the
evidence in question as well as any required
to be adduced in the future, as also the ques­
tion whether the difference complained of is
so considerable as to indicate indirect dis­
crimination against women. 68 However, it is
my personal opinion that a difference of that
size is not so significant as to justify a finding
that there is unequal treatment on the grounds
of sex; at all events, it does not approach the
percentages in the light of which the Court
has held there to be indirect discrimination. 69
128. As for the time at which any discrimina­
tion should be determined, it must be pointed
out that, where direct discrimination is
involved (as well as discrimination resulting
from defective implementation of the direc­
tive as in this case), it is sufficient to examine
the situation at the time when the measure
was introduced. In that case the assessment is
a legal one and consequently not linked in
principle to calculations and investigations of
the de facto situation generally.
Conversely, where indirect discrimination is
linked to the repercussions of a legislative
measure on the labour market, account must
be taken of the fact that those repercussions
are not instantaneous but require a certain
period of time to manifest themselves. Con-
sequendy the relevant point in time cannot be
either when the measure was adopted or when
the applicants were dismissed, as has been
proposed in the present case.
129. Furthermore, the measure was intro­
duced (in 1985) six years before the appli­
cants were engaged (1990). In those circum­
stances, statistics concerning the repercussions
of the measure in 1985 are of little use after
such a long time.
130. In my opinion, in a situation such as
that in the main proceedings, the material time
is the duration of the qualifying period. Con­
sequently, any comparison must take account
of the repercussions of the measure from the
time when the person affected was engaged
(terminus post quern) until the time when that
person is dismissed (terminus ante quern).
However, in order to avoid any fortuitous
results and in view of the fact that the reper­
cussions of the measure extend over a certain
time, it is also useful to look at the results of
the measure prior to and following the above
relevant period in order to have a yardstick.
131. As regards justification for a measure
introducing indirect discrimination, the
case-law requires the measure to be necessary,
appropriate and proportionate to the aim pur-
68 — See Enderby, cited in footnote 59, paragraph 17.
69 — See point 116 above.
I-663
OPINION OF MR COSMAS —CASE C-167/97
sued. 70 Reliance on generalisations and
abstract considerations of social policy cannot
justify such a measure. 71
132. In view of the fact that the national court
has better knowledge of the situation within
the Member State in question, it is for that
court to evaluate the extent to which the
national measure is justified from the above
point of view. 72 In the present case, however,
it is noted that no specific grounds and evi­
dence capable of justifying objectively the
measure at issue are apparent from the file on
the case nor were any adduced by the United
Kingdom Government, apart from general
reasons of social policy.
133. Therefore, if a national measure such as
that at issue was not contrary to the provi­
sions of the directive from the point of view
set out already, I would say that indirect dis­
crimination against women follows only
where, in practice, a much greater number of
women than men with less than two years'
employment are adversely affected in relation
to the corresponding percentages of employees
with more than two years' employment, and
that situation cannot be justified objectively
on grounds unrelated to sex.
G — Summary
134. Since the dispute in the main proceed­
ings concerns the interpretation of Directive
76/207 rather than Article 119 of the Treaty,
I do not consider that it is necessary to reply
to Question 1. In accordance with the solu­
tion I have proposed, a distinction should be
drawn between the aspects of a national mea­
sure, such as that at issue, which are of direct
concern to Community law and those which
are not of direct concern (at least at present).
I consider also, that, since the measure is con­
trary to Directive 76/207 for fundamental
reasons and regardless of the sex of the person
affected, there is no point in examining
whether, in the light of what is, in my opinion,
insufficient and weak evidence, the measure
introduces indirect discrimination in particular
against women.
The consequence of the solution I propose is
that the persons affected will be able to obtain
effective protection in the context of national
law, but solely in respect of the matters cov­
ered by Directive 76/207, in other words
solely if their dismissal was on grounds of
sex. Conversely, if the view of the applicants
and the Commission prevailed and the provi­
sion at issue were removed, every dismissal
would have to be reviewed to establish
whether it was unfair in general, even though
it was on grounds unrelated to sex. That,
however, would go beyond the framework
and purposes of Directive 76/207.
70 — Lewark, cited in footnote 49, paragraph 36.
71 — See Nimz, cited in footnote 16, paragraph 14.
72 — See inter alia Kording, cited in footnote 45, paragraph 20.
I-664
R v SECRETARY OF STATE FOR EMPLOYMENT, EX PARTE SEYMOUR-SMITH AND PEREZ
VI — Conclusion
In view of the foregoing, I would propose that the Court reply to the questions
referred to it for a preliminary ruling as follows:
A national measure such as that at issue in the main proceedings, which deprives
employees dismissed before they have completed two years' continuous employ­
ment for the same employer of the right not to be unfairly dismissed, is contrary to
Articles 5(1) and 6 of Directive 76/207, in so far as such a measure on the one hand
allows dismissal on grounds referable to the employee's sex, and on the other hand
makes it impossible or exceptionally difficult to provide a legal remedy for dismissed
employees who consider themselves thereby wronged.
I-665