Unison v Allen and others

EAT: Elias J (President), Mr A Harris and Miss S M Wilson: 26 July 2007

Until 1993 the claimants were employed as clerical support and administrative workers by NUPE and as such belonged to a group excluded from the NUPE pension scheme. In 1993, as a result of the amalgamation of three unions including NUPE, pursuant to section 97 of the Trade Union and Labour Relations (Consolidation) Act 1992, they became employed by the appellant union. On various dates from 1999 onwards, the claimants presented claims for equal pay to the employment tribunal, alleging indirect sex discrimination in respect of access to the NUPE pension scheme in that the group to which they belonged was predominantly female whereas the majority of the officers of NUPE, who were eligible to join the scheme, were male. The employment tribunal decided, as a preliminary issue, that liability for pensions had transferred to the appellant union as part of the "property" transferred on amalgamation, under section 105 of the 1992 Act, with the consequence that employment with NUPE and the appellant union was the same "employment" for the purposes of section 2(4) of the Equal Pay Act 1970, and that, accordingly, the claims were made in time.

The union appealed.

The Employment Appeal Tribunal held:
Absent very clear statutory language specifically including employees in the concept of property, contracts of employment were not an employer's "property", and, accordingly, did not come within section 105 of the Trade Union and Labour Relations (Consolidation) Act 1992. Although when trade unions merged to become one new union under section 97(1) of the 1992 Act their "engagements" transferred just as they did where there was a transfer by a trade union under section 97(2), the contracts of employees did not transfer by virtue of those provisions but pursuant to the Transfer of Undertakings (Protection of Employment) Regulations. Since under regulation 7 of the Transfer of Undertakings (Protection of Employment) Regulations 1981 obligations in respect of occupational pensions remained with the transferor, time began to run under section 4(2) of the Equal Pay Act 1970 from the point of transfer and the claimants' claims were out of time.

The appeal was allowed.

Appearances: Michael Ford (Thompsons, Bristol) for the appellant union; Andrew Short (Rowley Ashworth) for the claimants.