United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Edward Jankowski (Solicitor) London Borough of Brent Legal & Democratic Services Town Hall Annexe Forty Lane Wembley Middlesex HA9 9HD
For the Respondents	First Respondent Mr Ben Cooper (of Counsel) Instructed by: University and College Union Solicitors (UCU) 27 Britannia Street London WC1X 9JP Second Respondent neither present nor represented


 


SUMMARY

Equal Pay Act – Part time pensions

In determining that the Claimant's claim was in time by reason of her having been in a stable employment relationship with no fundamental changes, the Employment Tribunal Chairman correctly applied Preston and Others v Wolverhampton Health Care NHS Trust and Others [1998] IRLR 197 (HL) [2000] IRLR 506 (ECJ) and [2004] IRLR 96 (EAT), Thatcher v Middlesex University (EAT/0134/05) and Secretary of State v Rance and Others (UKEAT/0060/06).


 


HIS HONOUR JUDGE McMULLEN QC

1. This case arises in circumstances where the judgments in the litigation known as Preston and Others v Wolverhampton Health Care NHS Trust and Others [1998] IRLR 197 (HL) [2000] IRLR 506 (ECJ) and [2004] IRLR 96 (EAT) are to be applied. The pension scheme here is the Teachers' Superannuation Scheme and the period of access to which the Claimant makes a claim is between 25 January 1989 and 30 September 1992. Then she joined the pension scheme but did not submit her claim to the Employment Tribunal until 22 December 1994. The judgment has been delayed in order that the parties could make submissions on the subsequently delivered judgment in Secretary of State v Rance and Others (UKEAT/0060/06). I will refer to the parties as Claimant and Respondent.

Introduction

2. It is an appeal by the London Borough of Brent (the Secretary of State for Education and Employment taking no part) the Respondent in those proceedings against a judgment of an Employment Tribunal sitting to determine a preliminary issue at a PHR on 10 August 2006, Chairman Miss A M Lewzey, registered with reasons on 16 October 2006. The Claimant represented herself but is at the EAT represented by Mr Ben Cooper of Counsel. The Respondent is represented by Mr Edward Jankowski, in-house solicitor for the Respondent. The Claimant sought for retrospective access. The Respondent contended that the gateway chosen by the Claimant, that she was in a stable employment relationship, should fail as she had made her claim out of time The Chairman decided in the Claimant's favour. The Respondent appeals. I gave directions sending this appeal to a full hearing.

The legislation

3. The legislation in this case is not in dispute and is set out in Rance at paragraphs 6-11. In short, time begins to run for the presentation of an equal pay claim, including an equal access to pensions claim, six months from the ending of the contract of employment to which it relates or the ending of a stable employment relationship formed by a series of short term contracts. The Tribunal made the following findings:-

"3 In 1979 Mrs Shah commenced working for the London Borough of Brent as a secretary and later as an educational guidance counsellor. After she completed her teaching certificate she started working for Brent on 25 January 1989 as an hourly paid lecturer. She worked for the college of North West London until 7 July 1992 which was the end of the last of a series of fixed term contracts within that institution. I have the contracts at pages 1 to 76. She taught various subjects including information technology, work processing and business administration.

4 On 23 June 1992 she entered into a series of contracts for sessional paid work with Brent Adult and Community Education Service ("BACES") which is for adult educational guidance work. Those contracts appear in the bundle between pages 111 and 123 and run up to 20 December 1992. They all refer to a guidance officer.

5 On 1 October 1992 Mrs Shah joined the teachers pension scheme the reasons for this are not known although apparently it was some sort of error as it appears she was not eligible at that time.

6 Mrs Shah brought an Employment Tribunal claim against the Respondents on 22 December 1994 claiming a redundancy payment in respect of the cessation of the contracts at the college of North West London. She has told me that she realised this claim was a mistake because she did not receive a P45 or a notice of redundancy and in addition she moved swiftly to work at BACES.

7 I am left with incomplete evidence and incomplete payslips. I have studied the payslips that appear from page 103 up to page 154A which is a summary prepared by Mrs Shah. The payslips I have for autumn 1992 are at page 106 and that is for October 1992 and for December 1992 at page 107 the others are missing.

8 Mrs Shah's evidence is that she was teaching in autumn in 1992 on a sessional basis, although she did not have a regular class because her husband was ill at this time.

9 In March 1993 the evidence of the payslip at page 109 is that Mrs Shah was teaching. She shows, at page 11 OA and at page 1 54A, what she says were the receipts. I only have October and December for the autumn of 1992 although her own recollection suggests she worked in September for five hours and in October for six hours from page 1 54A. However, she was clearly teaching in 1993. She says that she taught for BACES from May 1992 to July for the summer holiday and then from mid September and her evidence was that she worked in October and November at the John Kelly centre.

12 The first set of contracts were contracts as a lecturer at the college of North West London and this series ended on the 7 July 1992. The Respondent's accept that there was a stable employment relationship prior to that date. She says that she realised she was not redundant when she received no P45 had no notice of redundancy and continued to work because she moved onto basis so swiftly. The claim appears to have been presented some two years later. All that I can deduce from this is that in December 1994 Mrs Shah thought that the 1992 cessation might amount to redundancy. She says this was~a mistake.

13 She continued to work for the Respondent so I have to consider whether she was doing broadly the same job. This requires a consideration of the period from June 1992 until August 1993. The contracts that I have with basis within the bundle are for guidance work. Guidance work is not the same as teaching work. I am satisfied from the evidence that although Mrs Shah would appear before a class, the work she was doing in guidance was different from teaching. She was assessing student's level in order to put them in an appropriate class. Therefore the nub of the matter is whether Mrs Shah was teaching for BACES from June 1992 or at the latest from September 1992 onwards.

14 Her evidence before me today is that she was teaching throughout the summer on summer courses and in the autumn term. I have noted that she had sought an order from the Tribunal which was granted on the 7 August and also that Mr Jankowski says that the Respondent's have disclosed all the documents that they have. I am left in a situation where I do not have the relevant documents and I have to consider the oral evidence before me.

15 I found Mrs Shah to be a credible witness. Her evidence, and she has been emphatic on this, is that she did some teaching in the autumn term of 1992 at the John Kelly Centre in October or November. The reduction in the amount of sessional teaching she did was because of her husband's illness. The pay rate in 1992 for the guidance work on the payslips seems to be at the same rate as for a teacher although the guidance work rate went down in early 1993. The issue is therefore, whether Mrs Shah has shown that she did teaching on a sessional basis from the autumn term 1992. Her own evidence, which is summarised at page 154A, is that she worked for five hours on 24 September, six hours between 8 and 22 October, two hours per week between 3 and 26 November, six hours per week from 5 November to 20 December and that she did ten hours in January and some eight hours in February. Some of this work was guidance work, some of this work was teaching work, the teaching work was as a part time lecturer. This comes down to the intermittent nature of the work. I have noted the reference by Mr McMillan in his judgment at paragraph 235 in which he says:-

"Part time teachers who by reason of the nature of their jobs work intermittently. The work must be for the same employer and be broadly the same throughout. That is it will be supply teaching although not necessarily at the same school or the same subject at the same key stages."

16 Clearly Mrs Shah was working for the same employer, the London Borough of Brent.

17 Mrs Shah only did sessional work. I am not satisfied that that sessional work did alter radically. On balance I accept her oral evidence that she did do sessional part-time teaching over the autumn of 1992 and during 1993. She was in the teacher's pension scheme for whatever reason from 1 October 1992, that was apparently an error, but she has remained in the scheme thereafter. In the light of the finding that she did do sessional part time lecturing work from 7 July 1992 until 1 October 1992 and thereafter until autumn 1993, I find that there was a stable employment relationship throughout."

The conclusion of the Tribunal was that the Claimant's claim was in time.

The Respondent's case

4. The Respondent contended that the decision not to renew the Claimant's contract for the 1992/1993 academic year led to a determination of the contract of employment by reason of redundancy, and that such would start time running.
5. Secondly, the impact of the Preston judgments is that the work done must be broadly the same. Here the work was different. The Tribunal Chairman was wrong to conclude that the work was broadly similar and that the time did not begin running when she changed her contract.

The Claimant's case

6. On behalf of the Claimant it is contended that Rance controls the judgment in this case. The Tribunal Chairman was engaged upon a process of evaluation not simply of the words of the contract but also of the circumstances in which the Claimant worked; see paragraph 52 of Rance and paragraphs 5 and 13 of the judgment there cited in Thatcher v Middlesex University (EAT/0134/05). It is contended that the approach must be to consider whether the work continues in broadly the same manner on the one hand, or is subject to a fundamental or a radical change. In the instant case the Chairman approached the matter applying the law correctly and her conclusion was one of fact open to her.

Discussion and conclusions

7. Since the Respondent made no submissions when invited to do so in the light of Rance, and since the Claimant contends that Rance contains the solution to this case, I can see no reason to depart from that approach. In my judgment, the Claimant is correct when she argues that matters here were considered not simply of a contractual nature but also of the circumstances in which the work was done. Whether or not there was work of a broadly similar nature is pre-eminently a question of fact and degree for the appreciation of the Employment Tribunal. It could not be said that the Chairman was wrong to hold that the work had not changed in a radical or fundamental way, so as to make the Tribunal's conclusion perverse.
8. The Tribunal Chairman correctly approached the issues of law applying the authorities I have cited above and reached her own conclusion. The combination of the judgments in Rance and Thatcher show this to be the correct conclusion and the appeal is dismissed. I would like to thank both Mr Jankowski and Mr Cooper for their submissions at the hearing and Mr Cooper for his follow up submissions.