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 higher proportion of part-time workers were women.
Held: The restriction on claims under the Act for membership of a pension scheme to a period of two years was incompatible with Community law, since it would deprive many of any substantial opportunity to claim. The effect was disproportionate in its effect on women. The limitation period requiring a claim to be made within six months was not incompatible in the same way or at all.
Lord Slynn explained the meaning of the ECJ judgment: ‘A stable employment relationship
The employees concerned in these appeals were variously employed, some under consecutive, but separate, contracts of service with breaks in between (e.g. teachers on a termly or academic year contract); some were regularly employed over a long period on this basis, others were not regularly employed but were employed from time to time and in that category some had what has been called an ‘umbrella’ contract. Where there is an ‘umbrella’ contract there is an ongoing contractual relationship but in the other cases there are separate contracts of employment. The Employment Appeal Tribunal . . and the Court of Appeal . . held that s 2(4) was dealing with specific contracts so that as a matter of interpretation a claim could only be brought in respect of employment in existence within the six months preceding the reference of the claim to the industrial tribunal. Your Lordships . . agreed with that interpretation but the question inevitably arose as to whether or not such interpretation meant that s 2(4) was incompatible with art 119. The Court of Justice, whilst accepting that time limits could be imposed in the interests of legal certainty, considered: ‘Whilst it is true that legal certainty also requires that it be possible to fix precisely the starting point of a limitation period, the fact nevertheless remains that, in the case of successive short-term contracts of the kind referred to in the third question, setting the starting point of the limitation period at the end of each contract renders the exercise of the right conferred by article 119 of the Treaty excessively difficult.
Where, however, there is a stable relationship resulting from a succession of short-term contracts concluded at regular intervals in respect of the same employment to which the same pension scheme applies, it is possible to fix a precise starting point for the limitation period.
There is no reason why that starting point should not be fixed as the date on which the sequence of such contracts has been interrupted through the absence of one or more of the features that characterise a stable employment relationship of that kind, either because the periodicity of such contracts has been broken or because the new contract does not relate to the same employment as that to which the same pension scheme applies.’
Accordingly, it is clear that where there are intermittent contracts of service without a stable employment relationship, the period of six months runs from the end of each contract of service, but where such contracts are concluded at regular intervals in respect of the same employment regularly in a stable employment relationship, the period runs from the end of the last contract forming part of that relationship.’
Lord Slynn of Hadley Lord Goff of Chieveley Lord Nolan Lord Hope of Craighead Lord Clyde
Gazette 08-Mar-2001, Times 09-Feb-2001, [2001] UKHL 5, [2001] 2 WLR 448, [2001] ICR 217, [2001] Emp LR 256, [2001] 3 All ER 947, [2001] 2 AC 455, [2001] IRLR 237, [2001] Pens LR 39, [2001] OPLR 1, [2001] 1 CMLR 46
House of Lords, Bailii
Sex Discrimination Act 1975 Sch 1 Part 1, Occupational Pension Schemes (Equal Access to Membership) Regulations 1976 (1976 No 142) 12, ECTreaty (OJ 1992 C 224, p 6) Art 119, Equal Pay Act 1970 2(4) 2(5)
England and Wales
Citing:
Cited – Rewe-Zentralfinanz eG v Landwirtschaftskammer fur das Saarland (Judgment) ECJ 16-Dec-1976
‘the right of individuals to rely on the directly effective provisions of the Treaty before national courts is only a minimum guarantee and is not sufficient in itself to ensure the full and complete implementation of the Treaty’ . .
See Also – Fletcher and others and Preston and others v Midland Bank Plc and Wolverhampton Healthcare NHS Trust Secretary of State for Health and others EAT 24-Jun-1996
EAT Equal Pay Act – Addendum to principal judgment. Part timers’ claims for membership of pension schemes only made out of time.
EAT Equal Pay Act – (no sub-topic). . .
Returned from ECJ – 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. . .
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 Trust Secretary of State for Health CA 13-Feb-1997
. .
Cited by:
At HL – 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 . .
See Also – 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 . .
See Also – Powerhouse Retail Ltd and others v Burroughs and others; Preston and others v Wolverhampton Healthcare NHS Trust and others (No 3) HL 8-Mar-2006
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 . .
At HL – Bainbridge and others v Redcar and Cleveland Borough Council EAT 23-Mar-2007
EAT Practice and Procedure – Compromise
Equal Pay Act – Work rated equivalent; Damages/Compensation
This case raises three issues, two of which are of particular significance in the field of equal . .
Cited – North Cumbria University Hospitals NHS Trust v Fox and Others CA 30-Jun-2010
ncumbria_foxA10
The employer had altered existing employment contracts. The claimants having commenced discrimination claims then sought to add to the existing proceedings comparators from different job groups. The tribunal had been asked whether, given that this . .
Cited – Abdulla and Others v Birmingham City Council QBD 17-Dec-2010
The defendant applied for an order declaring that the claim would better be brought in an employment tribunal and that accordingly the County court should decline jurisdiction.
Held: The application was dismissed: ‘ I reject the submission by . .
Cited – Birmingham City Council v Abdulla and Others SC 24-Oct-2012
Former employees wished to argue that they had been discriminated against whilst employed by the Council. Being out of time for Employment Tribunal Proceedings, they sought to bring their cases in the ordinary courts. The Council now appealed . .
Cited – Totel Ltd v Revenue and Customs SC 26-Jul-2018
The taxpayer challenged the ‘pay first’ rule under VAT which required them, before challenging a VAT assessment, first to deposit the VAT said to be due under the assessment.
Held: The appeal failed. There had not been shown any true . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.85027
