Case - Slack & Others v. Cumbria County Council

[2009] EWCA Civ 293, Court of Appeal - Jane McNeill QC, Betsan Criddle
The Claimants in these equal pay cases have succeeded in their appeals to the Court of Appeal on important time limit issues. The Claimants were represented by Jane McNeill QC and Betsan Criddle of Old Square Chambers.
 
The cases, reported at EAT level as Cumbria County Council v. Dow (No. 2) [2008] IRLR 109, concern the date from which time starts to run in an equal pay claim where employees are employed under successive contracts without a break.
 
The Court of Appeal in a judgment handed down this morning (3 April 2009) has overturned the judgment of the EAT and reinstated the ET’s judgment in the Claimants’ favour but on different grounds. The Court’s judgment breaks new ground as to what amounts to a “stable employment relationship” for the purposes of s.2ZA(2) Equal Pay Act 1970.
 
The Claimants in the appeal, who are sample cases for the approximately 5,000 cases in this litigation, are all long serving employees of Cumbria County Council (CCC). They presented equal pay claims in 2003. Two of the Claimants had asked to reduce their hours of work more than six months prior to the presentation of their claims. The remaining Claimant had moved from being a relief member of staff to a permanent position doing the same work, more than six months previously. When the change occurred in each case, the Claimants were sent new contracts of employment by CCC and signed them. There was no break between the contracts.
 
CCC contended that the Claimants could not pursue their claims for back pay beyond the date on which they had signed and returned the new contracts. It contended that these were standard (rather than stable employment) cases and that time therefore ran from the end of each contract under which the Claimants had been employed. Had the Claimants wished to pursue claims for back pay resulting from pay inequality under their previous contracts, they were obliged to present a claim to the tribunal within 6 months of the termination of those contracts. Termination, CCC said, occurred when the previous contracts were replaced by the new contracts. The claims in respect of the period of time prior to the signing of the new contracts were therefore out of time.
 
The Court of Appeal allowed the Claimants’ appeal. It held that where there was a change of hours only between the first and subsequent contracts, with the work and all other terms and conditions of employment remaining the same, the Claimants should be regarded as working under a stable employment relationship. The Court remitted the case of a change from relief to permanent employment to the tribunal to consider whether a stable employment relationship arose as there were some differences between the terms of the relief contract and the permanent contract.
 
This judgment therefore departs from the restricted definition of what constitutes a stable employment relationship as defined by the EAT in Preston v Wolverhampton Healthcare NHS Trust (No. 3) [2004] ICR 993, which requires, amongst other things, that there are breaks between the contracts. The decision in Preston was based on the law prior to the amendment of the Equal Pay Act in 2003, but it was followed in Degnan v Redcar and Cleveland Borough Council [2005] ICR 1170 as being the definition of a stable employment relationship for the purposes of the amended Act. It ends the previously anomalous position where a Claimant who was employed under successive contracts with a break was in a better position in relation to time limits than a Claimant employed under successive contracts without a break. It remains to be seen how similar each contract within the series must be in order for there to be a stable employment relationship.
 
CCC has been refused permission to appeal to the House of Lords.
 
CCC also sought permission to appeal to the Court of Appeal against the ET and EAT’s judgments rejecting its GMF defences. The Court refused permission to appeal, holding that there was no error of law in finding that there was an obligation to objectively justify the pay difference between the Claimants and their comparators, and that the difference was not justified. Clear findings of fact had been made that the Claimants were predominantly female and doing “women’s work”, whilst the comparators were predominantly male and doing “men’s work”. That gave rise to prima facie sex discrimination. The Council had also not established on the evidence that the men were working more productively in return for a bonus. The scheme was therefore not objectively justified.
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