The appellants said they had been had been discriminated against on the grounds of their sex by the TUPE Regulations. Their discrimination cases had been dismissed as out of time.
Held: The employees’ appeals were dismissed: ‘A statute cannot speak with two different voices at one and the same time. The rule that section 2(4) originally laid down was that a claim in respect of the operation of an equality clause must be brought within six months of the end of the employment to which the claim related. It applied to each and every claim that might be made in respect of the contravention of a term modified or included by virtue of an equality clause: see regulation 2(1). The same rule must be applied where there has been a TUPE transfer. The only question is: to which employment does the claim relate? The answer, where the claim is in relation to the operation of an equality clause relating to an occupational pension scheme before the date of the transfer, is that it relates to the woman’s employment with the transferor. ‘
Judges:
Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood
Citations:
[2006] UKHL 13, Times 13-Mar-2006, [2006] 3 All ER 193, [2006] IRLR 381, [2006] ICR 606, [2006] Pens LR 113, [2007] 2 CMLR 38
Links:
Statutes:
Equal Pay Act 1970 1, Transfer of Undertakings (Protection of Employment) Regulations 1981
Jurisdiction:
England and Wales
Citing:
See Also – Preston and Others v Wolverhampton Healthcare NHS and Others; Fletcher and Others v Midland Bank Plc HL 26-Feb-1998
‘Employment’ in context of a sex discrimination claim referred to a current employment contract even in context of there having been a series of repeated contracts of employment. The question was referred to the European Court of Justice. . .
See Also – Preston and Others v Wolverhampton Healthcare NHS Trust and Others, Fletcher and Others v Midland Bank Plc (No 2) HL 8-Feb-2001
Part-time workers claimed that they had been unlawfully excluded from occupational pension schemes because membership was dependent on an employee working a minimum number of hours per week and that that was discriminatory because a considerably . .
Cited – Defrenne v Sabena (No 2) ECJ 8-Apr-1976
ECJ The principle that men and women should receive equal pay, which is laid down by article 119, is one of the foundations of the community. It may be relied on before the national courts. These courts have a . .
Cited – Vroege v NCIV Instituut voor Volkshuisvesting B V ECJ 28-Sep-1994
Europa The right to join an occupational pension scheme, the rules of which were not laid down directly by law but were the result of negotiation between both sides of the industry concerned and all that the . .
Cited – Fisscher v Voorhuis Hengelo and Stichting Bedrijfspensioenfonds voor de Detailhandel ECJ 28-Sep-1994
Europa The right to join an occupational pension scheme, the rules of which were not laid down directly by law but were the result of negotiation between both sides of the industry concerned and all that the . .
Appeal from – Powerhouse Retail Ltd and others v Burroughs and others CA 7-Oct-2004
The court considered the non-admission of part time workers to pension scheme benefits after a transfer of employment.
Held: (Pill LJ) While the effect of TUPE was that the continuing contract of employment was deemed always to have been with . .
At EAT – Powerhouse Retail Ltd and others v Burroughs and others EAT 2004
. .
Cited – Securicor Omega Express Ltd v GMB (A Trade Union) EAT 7-Apr-2003
EAT The company decided to close two branches and make redundancies. They presented the closure itself as a fait accompli to the union representatives. The Tribunal found that this involved a failure to consult . .
See Also – Preston and others v Wolverhampton Healthcare Trust Secretary of State for Health CA 13-Feb-1997
. .
See Also – Preston and Others v Wolverhampton Healthcare NHS Trust and Others; Fletcher and Others v Midland Bank plc ECJ 16-May-2000
ECJ Social policy – Men and women – Equal pay – Membership of an occupational pension scheme – Part-time workers – Exclusion – National procedural rules – Principle of effectiveness – Principle of equivalence. . .
At EAT – Preston and others v Wolverhampton Healthcare NHS Trust and others EAT 3-Nov-2003
EAT Judge McMullen QC adopted a limited view of the scope of the new principle of stable employment set out at the ECJ and HL. He thought it was intended ‘to rescue employees who do not have a permanent job’; and . .
Appeal from – Preston and others v Wolverhampton Healthcare NHS Trust and Others (No 3) CA 7-Oct-2004
The claimants had had their employments transferred to another body under TUPE. They complained that their pension rights had been discriminatory. The employer appealed a finding that their claim had not been out of time.
Held: The effect of . .
Cited by:
Cited – Secretary of State for Health v Rance EAT 4-May-2007
EAT Equal Pay Act – Part time pensions
Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke
The EAT exercised its discretion to allow a point conceded at the Employment Tribunal to be . .
Cited – Sterritt and others v Stewarts Supermarkets Ltd NIIT 10-May-2007
NIIT The decision of the tribunal is that the application made by the claimants to review the decision of the tribunal registered and issued to each of the parties on 10 March 2006, dismissing the first notice . .
Cited – Unison v Allen and others EAT 26-Jul-2007
EAT Equal pay Act – Out of time
The claimants before the Employment Tribunal alleged that when they were employed by NUPE, that union had breached their rights under the Equal Pay Act in connection with . .
Cited – Bottomley and others v Wakefield District Housing EAT 8-Jan-2008
EAT Jurisdictional Points: 2002 Act and pre-action requirements
Equal Pay Act: Article 141/European law
Practice and Procedure: Appellate jurisdiction/reasons/Burns-Barke
The requirements for a . .
Cited – Sodexo Ltd v Gutridge and others EAT 31-Jul-2008
EAT EQUAL PAY ACT
JURISDICTIONAL POINTS: Claim in time and effective date of termination
The claimants alleged that their employer had been in breach of their rights under the Equal Pay Act 1970. They . .
Cited – Mcveigh v Stewarts Supermarkets Ltd NIIT 19-Aug-2008
. .
Cited – Slack and Others v Cumbria County Council and Another CA 3-Apr-2009
The court was asked when the six month’s limit for beginning equal pay proceedings began. The new section 2ZA set the qualifying date as ‘the date falling six months after the last day on which the woman was employed in the employment.’ The problem . .
Cited – EA Gutridge and Others v Sodexo and Another CA 14-Jul-2009
The employees appealed against dismissal of their equal pay claims. They said that having been transferred under a TUPE arrangement, and now having to claim against the new employer, they argued that the six months time limit started from the time . .
Lists of cited by and citing cases may be incomplete.
Discrimination, Employment
Leading Case
Updated: 07 February 2022; Ref: scu.238922