Slack v Cumbria County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery |
| Judgment Date | 03 April 2009 |
| Neutral Citation | [2009] EWCA Civ 293 |
| Docket Number | Case No: A2/2007/2863 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 April 2009 |
[2009] EWCA Civ 293
Before : Lord Justice Mummery
Lady Justice Smith
and
Lord Justice Goldring
Case No: A2/2007/2863
UKEAT/1048/06/MAA
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
MR JUSTICE ELIAS
MS JANE McNEILL QC and MS BETSAN CRIDDLE (instructed by UNISON Employment Rights Unit and Thompsons Solicitors) for the Appellants
MR CHRISTOPHER JEANS QC and MS AMY ROGERS (instructed by Cumbria County Council Legal Services Unit) for the Respondent
MS KARON MONAGHAN QC (instructed by Sophie Buckley Principal Legal Officer) for the Equality & Human Rights Commission intervening
Hearing dates: 14 th, 15 th and 16 th October 2008
Lord Justice Mummery: This is the judgment of the court.
Introduction
These appeals are about the six months' time limit for instituting equal pay proceedings in the employment tribunal (ET). The question is: when does the six months begin to run against the claimant? The ordinary litigant in an equal pay case could be forgiven for thinking that there is an easy answer to this straightforward question. Both sides in this case agree that there is an easy answer; but they disagree about what it is.
The general rule originally laid down by section 2(4) of the Equal Pay Act 1970 (the 1970 Act) was that no equal pay claim could be referred to the ET if the claimant has not been employed in the employment within the preceding six months. In other words, time began to run when the claimant ceased to be “employed in the employment.”
The time limit provision in section 2(4) was amended with effect from 19 July 200A new section 2ZA introduced the notion of a “qualifying date.” The ET proceedings must be instituted on or before the qualifying date; otherwise the ET can make no determination of the claim. In “the standard case”, which is all that need detain us at this point, the qualifying date is “the date falling six months after the last day on which the woman was employed in the employment.”
In many cases the time limit for instituting proceedings is not a problem. Take the case of the employee who has only ever worked for the employer under a single contract of employment. If that contract is subsisting at the date of the presentation of the claim, the limitation period has not been triggered by the ending of the employment. No “last day” in the employment has occurred. Time has not begun to run.
If that single contract has been terminated and the employment has come to an end, there is usually no difficulty in identifying the last day of the employment and the date by which the equal pay proceedings must be instituted.
Difficulties arise if there has been a succession of employment contracts between the same parties. An equal pay claim is brought in respect of the alleged contravention of the equality clause relating to the claimant's employment. The equality clause is in the contract either because the parties expressly agreed upon it when making the contract, or because it was deemed to be included pursuant to the 1970 Act. Each separate successive contract of employment contains an equality clause, breach of which gives rise to a claim for equal pay. If there has been more than one contract, can the claimant wait until six months after the last contract has ended or does she have to bring proceedings in respect of each contract within six months of the termination of that individual contract?
The answer to this question may well affect the amount that a claimant can recover if successful. Under section 2(5) of the Act, as amended by section 2ZB, in a standard case, the woman will be entitled to recover arrears of pay going back for six years from the date on which proceedings are begun. But she can only do that in respect of the 'employment' in respect of which she has brought her successful equal pay claim.
In the present cases, another question arises which is one of contract law rather than of statutory employment protection. What is the legal effect of an agreed variation to the terms and conditions of employment on the contract itself? Does the existing contract remain in being on terms as varied? Or is the current contract brought to an end by express or implied agreement and is a new contract made in its place? What are the criteria for determining when a new contract has been formed in substitution for an existing contract?
Before any of these questions can be sensibly discussed or answered, the litigation scene must be set with accounts of the facts in the claimants' cases, the tribunal proceedings and the legislation.
The litigation
From 2002 onwards, a very large number of female employees of Cumbria County Council (the Council) lodged equal pay claims at the employment tribunal (ET). All the claimants either had worked or were still working under contracts of employment which included an equality clause. The terms of many of these contracts of employment had been altered (to use a neutral term) at some stage during the claimant's overall period of employment. In those cases, the Council wanted to contend that at the time of the alteration, the existing contract of employment had been terminated and a new contract had been substituted. If that argument were to be successful, the Council would be able to limit the arrears payable to successful claimants to the period covered by the final contract of employment. In some cases, where the claimant was no longer working for it, the Council wanted to argue that the claims were simply time barred. It is estimated that these issues arose in about 1500 claims.
Accordingly, a group of 10 claims was selected as sample cases for the determination of these issues. On 21 December 2005, the ET gave judgment. It dismissed one claim simply because it was time barred. The remaining claims concerned alterations in the working arrangements. The ET found in favour of most of those claimants, including Mrs Joyce Slack and Mrs Rosalyn Elliott, two of the appellants before us. The ET found against Mrs Karen Athersmith, the third appellant in this court. In 2007, the Council appealed successfully to the EAT in the cases of Mrs Slack and Mrs Elliott. Mrs Athersmith's appeal to the EAT failed. All three appeal to this court.
The three appellants
To avoid confusion, we will continue to refer to the three appellants as claimants. Mrs Joyce Slack has been continuously employed by the Council as a cook at Edenside Residential Home since 25 January 1971. In 2000, she wanted to reduce her hours of work. There followed an agreement to vary her contractual hours from 37 to 30 hours, on 4 rather than 5 days, per normal working week with effect from 1 April 2000. In other respects her job remained the same. So did the terms and conditions of employment. She was supplied with a letter headed “Contract of Employment —Incorporating Statement of Written Particulars” and at the end of it there was this statement:
“This Contract of Employment supersedes any previous Contract of Employment.
Please signify your acceptance of this appointment on the above terms and conditions by signing one copy of this Contract and returning it to me.”
MrsSlacksignedthecopycontractdated29February2000andreturnedittotheCouncil,asrequested.
Mrs Rosalyn Elliott has been continuously employed by the Council as a day care assistant at the Edington Centre since 1 October 1996. In 2000, she wished to reduce her hours of work and the Council agreed that they should be changed from 28 to 21 hours, on 3 days rather than 4 days per week with effect from 12 June 2000. She signed a document in similar form to the one signed by Mrs Slack.
Mrs Karen Athersmith was employed by the Council as relief home carer from 1 November 2000. From 1 st April 2001, she accepted appointment as a permanent home carer. This resulted in a change of status and she became entitled to occupational sick pay. Otherwise her terms of employment were unchanged. She signed a contract document similar to Mrs Slack's on 15 May 2001.
None of the three claimants had applied for a new appointment or position calling for a new contract. In no case was there any gap or break in the continuity of their work for the Council.
The claimants presented their claims in 2003. The Council took the preliminary point that the changes in their working arrangements amounted to termination of their old contracts and commencement of a new contract. Accordingly, the only 'employment' in respect of which the ET had jurisdiction was under the final contract. In the cases of Mrs Slack and Mrs Elliott, the ET rejected that argument and held that, notwithstanding the express provisions in the contractual documents the claimants had signed, there had been only one employment. In Mrs Athersmith's case, the ET held that a new contract had been formed when she became a permanent employee. That was not because of the express term but because the nature of the change from relief to permanent was more fundamental. The EAT held that the express terms in the contract were determinative; the documents said that they created new contracts which superseded the old and that is what the parties must be taken to have intended.
The appeal to this court
Initially, the appeal to this court was to comprise mainly a rerun of the arguments which had been advanced before the ET and the EAT. The claimants were still contending that the alterations to their terms and...
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