McColgan vs WHSSB,Department of Health & Social
| Jurisdiction | Northern Ireland |
| Judgment Date | 19 June 2007 |
| Respondent | WHSSB,Department of Health & Social |
| Docket Number | 10003/95IT |
| Court | Industrial Tribunal (NI) |
THE INDUSTRIAL TRIBUNALS
CASE REF: 10003/95 sd/ep
CLAIMANT: Eithne McColgan
RESPONDENTS: 1. WHSSB
- Department of Health & Social Services & Public Safety
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the claimant’s claim against the respondents is dismissed on the grounds that it is out of time, having been presented after the statutory time limit has expired; and the tribunal therefore has no jurisdiction to hear the said claim.
Constitution of Tribunal:
Chairman (sitting alone): Mr N Drennan QC
Appearances:
The claimant was represented by Ms M Durkan, Barrister-at-Law, instructed by Thompsons, Solicitors.
The respondent was represented by Mr W P Johnston, Solicitor, of The Departmental Solicitor’s Office.
Reasons
- This pre-hearing review was arranged to consider the following issues:-
(i) Whether the claim was presented within the statutory time limit?
(ii) If yes, whether the claim has any reasonable prospect of success.
- It was agreed, at the outset of the proceedings, that the tribunal, at this pre-hearing review, would only consider the first preliminary issue relating to time. If the tribunal found that the claim was in time, it was agreed a Case Management Discussion would then be arranged to consider the way forward, in light of the tribunal’s decision on the said preliminary issue, and to give such further and other consequential case management directions and orders as may be appropriate in the circumstances
- The claimant, in her claim, seeks a Declaration that she is entitled to retrospective membership of her employer’s Occupational Pension Scheme (‘NHS Pension Scheme’) for the period from 15 August 1979 to 21 February 1982, and that she was unlawfully excluded from the said Scheme because of her part-time status
- The claimant presented her claim to the tribunal on 22 December 1994; and the respondents contend that the claimant’s claim is out of time and the tribunal does not have jurisdiction to hear the claimant’s claim.
- The claim is brought under the Equal Pay Act (Northern Ireland) 1970. The time limit for bringing such proceedings is set out in Section 2(4) of the said Act which provides as follows:-
2(4) “A claim in respect of the operation of an equality clause relating to a woman’s employment shall not be referred to an industrial tribunal, otherwise than by virtue of Sub-Section (3), if she has not been employed in the employment within the six months preceding the date of the reference.”
Section 2(4) of the said Act has now been amended by the provisions of the Equal Pay Act (1970) (Amendment) Regulations (Northern Ireland) 2004; but those provisions do not apply to these proceedings as the claimant’s claim was commenced prior to the date of the commencement of the said Regulations on 28 April 2004.
There is no power to extend the said six month time limit in any circumstances.
- The meaning of the phrase ‘in the employment’ has been determined in the case of Preston & Others v Wolverhampton Healthcare Trust & Others [1998] ICR 227 HL, where it was held that it did not refer to the overall employment relationship between the parties but the contract of employment in respect of which the complaint is made. Thus, the six month time limit provided for in Section 2(4) of the 1970 Act runs from the end of the contract under which the employee is employed, whose equality clause, which is implied under the said Act into the contract of employment of every woman, has been broken.
- The House of Lords referred to the European Court of Justice (‘ECJ’) the question whether the said time limit was compatible with a claimant’s rights under Article 141 EC and found there was some incompatibility. The ECJ said:-
“67 As pointed out in Paragraph 33 of this judgment, the court has held that the setting of reasonable limitation periods is compatible with community law in as much as the fundamental principle of legal certainty is thereby applied. Such limitation periods cannot therefore be regarded as capable of rendering virtually impossible or excessively difficulty the exercise of rights conferred by community law.
68 Whilst it is true that legal certainty also requires that it be possible to fix precisely the starting point of limitation period, the fact nevertheless remains that, in the case of successive short term contracts of the kind referred to in the third question, setting the starting point of the limitation period at the end of each contract renders the exercise of the right conferred by Article 119 of the EC Treaty excessively difficult.
69 Where, however, there is a stable relationship resulting from a succession of short term contracts concluded at regular intervals in respect of the same employment to which the same pension scheme applies, it is possible to fix a precise starting point for the limitation period.
70 There is no reason why that starting point should not be fixed as the date on which the sequence of such contract has been interrupted through the absence of one or more of the features that characterise a stable employment relationship of that kind, either because the periodicity of such contracts has been broken or because the new contract does not relate to the same employment as to that to which the pension scheme applies.
71 The requirement, in such circumstances, that a claim concerning membership of an Occupational Pension Scheme be submitted within the six months following the end of each contract of employment to which the claims relates cannot therefore be justified on grounds of legal certainty.
72 The answer to the third question must therefore be that community law precludes a procedural rule which has the effect of requiring a claim … to be brought within six months of the end of each contract of employment to which the claim relates where that has been a stable employment relationship resulting from a succession of short term contracts concluded at regular intervals in respect of the same employment to which the same pension scheme applies.”
- The case returned to the House of Lords for further consideration and is reported at Preston No 2 [2001] ICR 217. At Page 229, Lord Slynn of Hadley said:-
“33 Accordingly it is clear that where there are intermittent contracts of service without a stable employment relationship, the period of six months runs from the end of each contract of service, but where such contracts are concluded at regular intervals in respect of the same employment regularly in a stable employment relationship the period runs from the end of the last contract forming part of that relationship.”
- In the case of Jeffery & Others v Secretary of State for Education & Others [2006] ICR 1062, Elias J (President), at Paragraphs 17 and 18 of his judgement expressly agreed the analysis of Judge McMullen QC in the case of Preston (No 3) [2004] ICR 993, where he had considered the decisions of both the ECJ and the House of Lords (see Paragraph 112 – 118), and where he had made clear that the ability to make use of the said exception was limited to those cases satisfying the conditions defined by the Court of Justice and adopted by the House of Lords:-
“17 … although in layman’s terms, it may understandably be said that entry into a permanent job does not destroy a stable employment relationship, that concept in the context of this jurisdiction is a very much more precise one. As Judge McMullen QC pointed out, at Paragraph 118:- “It is not apt to describe the succession of short term contracts and a permanent contract as a succession of short term contracts.”
18 I entirely agree with his analysis on this point. In my judgment, it cannot be said that there is a continuation of the stable employment relationship into a new permanent contract. To put it my own words, the concept of a stable employment relationship has the effect of requiring a series of intermittent contracts or temporary contracts to be treated as if they were a single contract terminating at the conclusion of the last of those sequential contracts. But this only modifies the basic principle that time runs from the end of each contract in the very precise circumstances identified by the Court of Justice. It does not permit an employee to treat a...
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