Indirect Discrimination: Interpreting Seymour-Smith

Abstract

The preliminary ruling by the European Court of Justice in the Seymour-Smith and Perez case about the scope and meaning of indirect discrimination has done little to clarify this perplexing concept. The ruling does not tell the thousands of short-service employees whose claims were stayed pending the litigation whether the qualifying period of two years’ continuous service for the right not to be unfairly dismissed is contrary to Community law. Nor does it provide clear standards by which disparate impact is to be tested, nor the relevant time for assessing the legality of an allegedly discriminatory measure, nor the conditions for establishing objective justification. More generally, these proceedings under Article 177 (now Article 234) of the EC Treaty reveal a failure by the Court to perform its function of facilitating the national court in interpreting and applying Community equality law in a way which would be consistent and uniform throughout the Union.