Equal Pay : Slack v Cumbria County Council

Slack v Cumbria County Council (Equality and Human Rights Commission intervening): [2009] EWCA Civ 293

CA: Mummery, Smith and Goldring LJJ: 3 April 2009

The first two claimants, having been continuously employed by the respondent council for some time, in 2000 each secured the council's agreement to a reduction in her hours of work and signed a new contract of employment, the terms and conditions of employment in all other respects remaining the same.

The third claimant, who had been working as a relief home carer for the council, signed a new contract of employment on her appointment as a permanent home carer in 2001, her terms of employment being unchanged except in respect of her entitlement to occupational sick pay and holiday pay.

In each case the new contract stated that it superseded any previous contract of employment. In 2003 the claimants commenced proceedings under the Equal Pay Act 1970, and an issue arose as to the "qualifying date" for instituting the proceedings for the purposes of section 2(4), it being common ground at that stage that the cases were "standard cases" falling within section 2ZA(3).

The employment tribunal found that, in the case of the first two claimants, notwithstanding the express
provisions in the contractual documents, there had been a consensual variation of a continuing contract of employment, so that there had been only one employment for the purposes of section 2ZA(3) and,
accordingly, the qualifying date would be six months after the last day of that employment.

In relation to the third claimant, the tribunal found that a new contract had been formed when she became a
permanent home carer, and that under sections 2(4) and 2ZA any claim for equal pay in respect of her earlier employment was statute barred.

The Employment Appeal Tribunal allowed an appeal by the council in relation to the first two claimants' claims and dismissed an appeal by the third claimant, holding that the express terms of the claimants'
new contracts were determinative and, in each case, created a new period of employment.

The claimants appealed, and, on the appeals, the Equality and Human Rights Commission intervened, seeking permission to contend, inter alia, that a case, in which there had been a termination of a contract of employment and a continuation of the employment under another contract for substantially the same work, should be regarded as a "stable employment case" within section 2ZA(2)(4) of the Equal Pay Act 1970.

The Court of Appeal held:

(1) The court would only exercise its discretion in exceptional circumstances to grant permission for new grounds of appeal to be added at a late stage, but the circumstances of the present litigation, where the claimants had been selected from a large number of employees to provide samples of claims brought against the council, were not ordinary or normal, and rulings on the fresh grounds raised by the Equality and Human Rights Commission would help determine the outcome of many similar claims. Permission would not, however, be given if a point had no real prospect of success.

(2) The Employment Appeal Tribunal was right to conclude that in each case the document signed by the claimant, which expressly stated that it superseded any previous contract of employment, was a valid new
contract of employment. Time for instituting an equal pay claim, in a standard case, began to run from the end of the contract of employment in respect of which an equal pay claim was made, and not from the ending of the employment relationship, whether the termination of one contract was followed by another contract either immediately, as in the present cases, or after a break. It followed that, treating the claims as standard cases, under section 2AZ(3) of the Equal Pay Act 1970, the time limit for referring the operation of the equality
clause, in respect of the previous employment, to the employment tribunal would be triggered by the termination of that employment.

(3) But, on the facts found by the employment tribunal, namely that the first two claimants did the same work for the council over many years without any break in the work they did or in the succession of contracts and that the only variation made in the new contracts was in the reduction of working hours, the relationship was one of "stable employment". Accordingly, under section 2ZA(4) of the Equal Pay Act 1970 the time limit for their claims was not triggered until that relationship ended. In the case of the third claimant, the facts found
were not clear enough to enable the court to say that it was a stable relationship, and her case would be remitted to the employment tribunal to investigate and decide that issue.

The appeals were allowed.