Sodexo Ltd v Gutridge and others: EAT 31 Jul 2008

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 had been transferred pursuant to a TUPE transfer and claimed their equal pay rights some five years later. Their claims relied upon establishing equal pay with comparators who had been employed by the transferor but had not been transferred to the transferee.
The employers argued that the claims were out of time and should have been brought within six months of the transfer as required by section 2ZA of the Equal Pay Act. They relied upon the decision of the House of Lords in Powerhouse Retail Limited v Burroughs and others [2006] IRLR 381 as interpreted in Unison v Allen [2007] IRLR 975. The Employment Tribunal held that these authorities applied only where the breach in issue was that of the transferor. They did not apply where, as in this case, the allegation was that the transferee was personally liable for breach of the transferred terms.

The EAT allowed the employer’s appeal but only in so far as the claims related to the period when the transferor was in breach of the equality clause. They held that Powerhouse would apply so as to render out of time any claims against the transferor (even although liability for those breaches had transferred to the transferee). However, the EAT dismissed the appeal with respect to the claims against the transferee for his failure personally to respect the transferred terms; that claim could be brought at any time within six months from the end of the relevant employment with the transferee.

Elias J P
[2008] UKEAT 0024 – 08 – 3107, [2008] IRLR 752, [2008] ICR 70
Equal Pay Act 1970
England and Wales
CitedPowerhouse 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 . .
CitedUnison 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 . .
CitedSorbie v Trust House Forte Hotels EAT 1976
Phillips J considered an alteration to the terms of an employment contract, saying: ‘One then goes on to see what the effect as prescribed is, and it is that that term, so identified, in the appellants’ contracts shall be treated, as so modified, as . .
CitedLawrence and others v Regent Office Care Ltd and Others ECJ 17-Sep-2002
The employees claimed sex discrimination, and sought to have as comparators, male employees of an employer who had previously employed some of them, before a TUPE transfer of the services supplied. The Court of Appeal referred to the court the . .
CitedArmstrong and others v The Newcastle Upon Tyne NHS Hospital Trust EAT 22-Nov-2004
EAT Equal Pay Act
Equal pay. No common terms of employment between different hospitals in the same Trust. No single source responsible for purposes of Article 141. Equality clause would survive a TUPE . .
CitedMartin v Lancashire County Council Appeal (and Cross Appeals) Bernadone v Pall Mall Services Group and Haringey Healthcare Nhs Trust and Independent Insurance Ltd CA 16-May-2000
Where an undertaking was transferred, existing liabilities arising out of the employment were transferred notwithstanding that these liabilities were not contractual. A claim for personal injuries became the responsibility of the new employer. At . .
CitedJackson v Computershare Investor Services Plc CA 30-Oct-2007
It is inconsistent with the TUPE regulations to seek to use them to improve an employee’s terms and conditions. . .
CitedMacarthys Ltd v Smith ECJ 27-Mar-1980
The first paragraph of article 119 of the EEC Treaty applies directly, and without the need for more detailed implementing measures on the part of the community or the member states, to all forms of direct and overt discrimination which may be . .

Cited by:
Appeal fromEA 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.

Employment, Discrimination

Updated: 11 November 2021; Ref: scu.271329