United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS J Y MARTIN (The Appellant in Person)
For the First Respondents	MR R CURTIS (of Counsel) Essex County Council Legal Services 60-68, New Bridge House New London Road Chelmsford Essex CM2 0PD
For the Second Respondents	No appearance or representation by or on behalf of the Second Respondent.


 


SUMMARY

EQUAL PAY ACT: Article 141/European law

Since Slack a claim for equal access based on a stable employment relationship cannot be struck out, as being out of time, when the series of short term contracts of employment is succeeded by a permanent contract.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about the entitlement of a part-time female teacher to equal access to the Teachers' Pension Scheme. I will refer to the parties as the Claimant and the Respondent. The Second Respondent, the Secretary of State for Education and Employment takes no part in these proceedings, seeking to rely on a defence advanced by Essex County Council. The Claimant represents herself as she did at the Employment Tribunal and the Respondent has the advantage to be represented by Mr Richard Curtis, in-house Counsel.
2. The claim arises out of a judgment given by Employment Judge Lewsey at a hearing on 17 December 2008 registered with Reasons on 11 February 2009. Twelve women brought claims in the London (Central) Tribunal that they were entitled, for various reasons, to recognition of their time working for the Respondent towards their pension for they were part-timers. Written submissions were given by five of them; six of them, including Mrs Martin, attended; one of them did not attend and Mr Curtis attended for the first Respondent.
3. The conclusion in respect of Mrs Martin was this,

"10. The next person is Mrs Martin who appeared before me in person. She claims for the period September 1976 until 31 August 1993 when she became a permanent fractional employee, having been employed under fixed term contracts prior to that date. The claim was lodged on 23 December 1994. The stable employment relationship ended on 31 August 1993 and, therefore, the claim was due by 28 February 1994. The claim is out of time. Mrs Martin has produced a letter that she has from NATFHE. However, that is not a letter from the Employment Tribunal. I am bound by the rules as set out on Bulletin 9, the claim must be made within six months from the ending of the stable employment relationship which would have been 28 February 1994. The claim is out of time, there is no jurisdiction and the claim is struck out."

That short paragraph requires some context because it is a reference to the judgments of the European Court, the House of Lords and myself in a series of cases called Preston -v- Wolverhampton Healthcare NHS Trust (No. 3) [2004] IRLR 96

4. I set out the procedure for dealing with these claims in Thacker -v- Secretary of State for Education and Skills (UK EAT/00339/05). In short a person who has a stable employment relationship is entitled to bolt together the periods when she did not have a contractual relationship in order to postpone the date when she must bring a claim under the pensions' aspect of the Equal Pay Act 1970.
5. The ruling of the European Court relied on hitherto is that claimants who have broken service, for example because they work academic sessions or on supply, are required to bring claims within six months of the relationship ceasing. The rescue operation, provided now by statute, is for those people who can say they have a stable employment relationship.
6. In Slack v Cumbria County Council [2009] EWCA Civ 293 an argument was addressed to a court for the first time that a stable employment relationship exists not only when a series of periods of employment is broken by periods of unemployment but also where that series is succeeded by a permanent contract of a different nature. In the Claimant's case she became a permanent employee and joined the pension scheme, being entitled to do so on 1 September 1993. Her claim relates, therefore, to the period when she was engaged by the Respondent or its predecessor from September 1976 until August 1993.
7. The Court of Appeal upheld an intervention made on behalf of the Equality and Human Rights Commission to precisely that effect. Mummery LJ for the court said this,

"96. As will appear later, some of the general submissions made in support of this point are relevant to other new points on stable employment and the application of EC law.

Stable Employment Point

97. As explained above, the concept of "a stable employment relationship" in the context of time limits for equal pay claims emerged in the judgment of the Court of Justice in Preston. That was a case of a succession of contracts with breaks between the contracts. The Council emphasised that that was the context in which there was room for the concept and that it was not necessary for the Court of Justice to consider the operation of time limits in case like this of an unbroken succession of contracts. It was argued that the stable employment case does not cover these cases either by reason of the ruling of EC law or as a result of the 2003 Regulations implementing the ruling of the Court of Justice into the provisions of domestic law.

98. The claimants disagreed. They submitted that there is no logic in a distinction confining the concept of a stable employment to cases in which there are contract-free breaks in the succession of employment contracts. The irresistible logic of the reasoning of the Court of Justice and of the purpose of the 2003 Regulations is that an uninterrupted succession of contracts is an a fortiori case of a stable employment relationship.

Discussion

99. We agree with the claimants. In our judgment, on the facts found by the ET, the relationship between the Council and both Mrs Slack and Mrs Elliott was a case of stable employment. They did the same work for the Council over very many years without any break in the work they did or in the succession of contracts. The only variation made in the new contracts in 2001 was in the reduction of working hours.

100. However, the facts found in Mrs Athersmith's case are not clear enough to enable this court to say it was a stable employment case. She started as a relief carer. A new contract was issued by the Council and signed by her when she became a permanent carer. She also acquired the right to sick pay. It will be necessary for her case to be remitted to the ET to find all the facts relevant to a stable employment relationship. It is for the ET to investigate and to decide that issue, which was not raised before it first time round."

8. I say that is the first time that the argument was addressed, so the law now is expressed to be that it is possible to bolt a series of short-term contracts to a permanent contract in order to attain a stable employment relationship. That it seems is what occurred in this case. The single issue for the Employment Judge to determine was whether the claim should be struck out as having no reasonable prospect of success. At the time she made that decision I could understand her reasoning, but it cannot now survive the judgment in Slack. Mr Curtis engagingly accepts that the ground upon which this argument can be advanced is now very slight.
9. The judgment will be set aside; the claim is not struck out. There may be arguments which are available to the Respondent but at the present stage it is necessary for me to do no more than to direct that the claim be heard and the Respondent, together with the Secretary of State, can decide what attitude they wish to take about the further conduct of this case and go back to the Employment Tribunal for directions. I will give the Respondent 14 days to decide what to do.