| DISCRIMINATION — Sex — Equal pay — Transfer of undertaking — When time limit for bringing claim in employment tribunal starts to run — Equal Pay Act 1970, s 2(4)
Preston and others v Wolverhampton Healthcare NHS Trust and others (No 3)
Fletcher and others v Midland Bank plc and others (No 3)
HL: Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell and Lord Brown of Eaton-under-Heywood: 8 March 2006
Where a woman’s employment was transferred from one employer to another under the Transfer of Undertakings (Protection of Employment) Regulations 1981 (SI 1981/1794), (“TUPE”) any claim in the employment tribunal in respect of the operation of an equality clause had to be brought within six months of the date of the transfer.
The House of Lords so held dismissing an appeal by the applicants, Vivienne Margaret Burroughs, Kathleen Anne Bartlett, Doreen Carey and Anne Sheen, employees of Powerhouse Retail Ltd or Midlands Electricity plc, from a decision on 7 October 2004 of the Court of Appeal (Pill, and Jonathan Parker LJJ and Laddie J) [2005] ICR 222 allowing the employers’ appeal from a decision of the Employment Appeal Tribunal (Judge Mc Mullen QC) on 19 December 2003 [2004] ICR 993 allowing the applicants’ appeals from decisions promulgated on 5 August 2002, of a Nottingham employment tribunal sitting at Central London, that where there was a transfer of an undertaking from within the nationalised electricity industry to a subsidiary company under the 1981 Regulations (“TUPE”), the time for bringing a claim ran from the date of the transfer.
At the relevant time s 2(4) of the Equal Pay Act 1970, as amended by s 8(6) of, and para 6(1) of Part I of the Schedule to the Sex Discrimination Act 1975 provided: “No claim in respect of the operation of an equality clause relating to a woman’s employment shall be referred to an industrial tribunal ... if she has not been employed in the employment within the six months preceding the date of the reference.”
LORD HOPE OF CRAIGHEAD said that the claims in respect of the operation of an equality clause relating to an occupational pension scheme where there had been a TUPE transfer must be brought against the transferor, not the transferee. The time limits affected every claim which depended on facts that occurred prior to the date of the TUPE transfer, and the applicants’ claims were all in that category. The question was whether time began to run from the date of the transfer or whether it ran from the end of the employee’s employment with the transferee. When s 2(4) was read as a whole, its plain and natural meaning was that the claim must be brought within six months of the end of the employment to which the claim related. The only question was: to which employment did the claim relate ? The answer was that it related to the woman’s employment with the transferor. That interpretation had the advantage of certainty. The best way of achieving the purpose of the time limit was to link it as closely as possible to the liability which was the subject of the claim. That was achieved if the period of six months within which the claim must be brought ran from the end of the claimant’s employment with the transferor, to whom the liability belonged, rather than the end of her employment with the transferee.
LORD SCOTT, LORD RODGER, LORD CARSWELL and LORD BROWN agreed.
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