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 their pension rights. Subsequently, NUPE transferred to Unison by way of a trade union amalgamation. The claimants brought their claims years after the transfer but whilst still employed by Unison. The issue arose whether they had brought them in time within the meaning of s2(4) of the Equal Pay Act. This requires them to bring their claims within six months of the employment terminating. Initially they claimed that their contracts transferred to Unison under TUPE and that the employment did not end until they ceased to be employed by Unison. However, that argument was doomed to fail after the decision of the House of Lords in Powerhouse Retail v Burroughs [2006] IRLR 381 which held that in such circumstances the relevant employment was employment with the transferor. They argued that Powerhouse was decided the way it was only because pension rights were not transferred under TUPE. So they alleged that their contracts had transferred in their entirety as a consequence of the transfer of property and engagements in the course of the amalgamation. On that premise, they submitted that the relevant employment, following the reasoning in Powerhouse, was that with the transferee, Unison.
The Employment Tribunal upheld their arguments but Unison’s appeal was successful. The claims were made out of time. Observations on the effect of the Powerhouse case.
Judges:
Elias P J
Citations:
[2007] UKEAT 0056 – 07 – 2607, [2008] ICR 114, [2007] IRLR 975, [2007] Pens LR 335
Links:
Statutes:
Equal Pay Act 1970 2(4), Trade Union and Labour Relations (Consolidation) Act 1992 97(1) 97(2), Transfer of Undertakings (Protection of Employment) Regulations 1981
Citing:
Cited – 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 . .
Cited – Godrich and Serwotka v Public and Commercial Services Union and Reamsbottom ChD 31-Jul-2002
The second defendant had become General Secretary of the first defendant after the amalgamation of two unions. The defendants agreed a compromise as to his term of office. The applicants sought declarations that they were now joint secretary.
Cited – Co-Operative Group (CWS) Ltd v Stansell Ltd and Another CA 9-May-2006
. .
Cited – Nokes v Doncaster Amalgamated Collieries Ltd HL 1948
A Contract of Service is not a form of property
The employee coal miner was prosecuted for absenting himself from work. He was found liable by the justices and appealed. The basis of the appeal was that he had formerly been employed by the Hickleton Mining Company Limited. That had become . .
Cited – Bedford and others v Furniture Timber and Allied Trades Union EAT 29-Nov-1994
Union members said they had been unlawfully disciplined by the transferor union and sought their remedy against the transferee, the GMB.
Held: There was a transfer of engagements and that the GMB were liable. . .
Cited – Associated Newspapers Ltd v Wilson; Associated British Ports v Palmer HL 31-Mar-1995
The Daily Mail had recognised the Union to which their journalists belonged. They wanted to end this arrangement, and offered a better rate of pay to non-members. The union said this was an unlawful action taken because of union membership. Similar . .
Cited – 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. . .
Cited by:
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 . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Updated: 11 July 2022; Ref: scu.258506
