Case - Donnelly & Others v. NHS Greater Glasgow & Clyde and Others

LTL 18/10/2012, Employment Appeal Tribunal - Ian Truscott QC
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The appellant employees (F) appealed against an employment tribunal's decision that their equal pay claims against the respondent NHS Board (N) were time-barred.

F had initially been employed by NHS trusts (T). When T were dissolved, F were transferred to N. Their contracts of employment had effect as if originally made with N. All of T's rights, powers, duties and liabilities transferred to N, and anything done by T before the transfer was deemed to have been done by N. Although the Transfer of Undertakings (Protection of Employment) Regulations 1981 did not apply, the move was regulated by subordinate legislation, which offered equivalent provisions to TUPE. F brought equal-pay claims alleging, among other things, that they had suffered unequal pay when employed by T. The tribunal found that there had been a change of employment when F were transferred from T to N and that therefore, when F brought their claims concerning the pre-transfer employment, they had not been in that employment within the preceding six months and so were out of time under the Equal Pay Act 1970 s.2(4). Applying Powerhouse Retail Ltd v Burroughs [2006] UKHL 13, [2006] 3 All E.R. 193 and Sodexo Ltd v Gutridge [2009] EWCA Civ 729, [2009] I.C.R. 1486, the tribunal concluded that it only had jurisdiction to consider the claims against N for the period between the transfer and the presentation of the claims.

F submitted that there were material distinctions between a TUPE transfer, with which Powerhouse and Gutridge were concerned, and the transfer in the instant case which, on the facts, involved nothing more than a reallocation of responsibilities between statutory bodies both specifically created for the same purpose, namely for the delivery of health services to the public.

HELD: The six-month time limit ran, in principle, from the date of transfer in cases of non-TUPE transfer as well as in cases of TUPE transfer. There was nothing in the instant case to indicate that that principle should not be applied. For time-limit purposes, the employment to which F's claims related was their employment with T prior to transfer, and their employment with N, a separate legal person, after transfer. The first employment had come to an end, Nokes v Doncaster Amalgamated Collieries Ltd [1940] A.C. 1014 applied. The transfers to N demonstrated a new beginning, albeit on the basis that F's terms and conditions of employment would be the same as before and as if originally made between F and N. That was not, however, indicative of their continuing in the same employment at common law. They were also plainly separate employments, Powerhouse and Gutridge applied (see paras 84-85 of judgment).

Appeal dismissed.

Counsel:
For the appellants in the first action: Calum MacNeill QC
For the appellants in the second action: Brian Napier QC
For the first respondent: Ian Truscott

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