Those claims could previously only be made in relation to a
series of short contracts with breaks in between them.
The Court has said that where people's contracts are amended or
changed slightly there is not a definitive break in their
employment history and any equal pay grievances can be brought in
relation to all of the contracts and not the most recent one.
A ruling from the European Court of Justice (ECJ) in a previous
case created a situation of 'stable employment', where people on a
series of short term contracts could make claims in relation to
that string of contracts and not just the most recent one.
That ruling had suggested, though, that that right only existed
in situations like the one on which the ECJ ruled, where there were
short breaks between contracts. The Court of Appeal ruling means
that the equal pay demands can be made where there are no breaks
between contracts.
"The irresistible logic of the reasoning of the Court of Justice
and of the purpose of the 2003 Regulations is that an uninterrupted
succession of contracts is a … case of a stable employment
relationship," said Lord Justice Mummery in his ruling.
The case was between Joyce Slack and other employees and their
employer, Cumbria County Council. It was one of thousands of equal
pay claims facing local authorities across the UK. The Equality and
Human Rights Commission (EHRC) also made arguments on behalf of the
workers.
Slack and her colleagues had worked for the Council for many
years but had requested changes in working practices that required
changes to their contracts.
New contracts were issued and signed, and when Slack came to
make an equal pay claim the Council said that it could only be made
in relation to the most recent, changed contract.
Slack argued that the new contract was a variation of her
original contract and did not terminate the original. The Council
disagreed, as did the Court of Appeal.
"Each claimant signed a document containing detailed terms and
conditions of employment," said the Court's ruling. "The document
included terms which differed from the previous contracts. Each
document expressly stated it superseded any previous contract of
employment. The provision was flagged up to the recipients. The
documents which each claimant has signed are not alleged to be
shams, or to have been obtained by improper pressure, or to offend
public policy."
"Nor do they contain terms that are so unusual or onerous (such
as exclusion or penalty clauses) that it can be argued that the
Council was under a positive duty to draw them specifically to the
attention of the claimants. The signed documents are new contracts.
They are valid and binding," it said.
The Court did allow the EHRC to introduce new arguments into
proceedings, though. It said that though this was unusual it was
necessary because these issues would have to be decided at some
point because of the backlog of equal pay claims.
The EHRC said that the case was not a 'standard' one but one of
'stable employment', where a claim can apply not just to the most
recent contract but to its predecessors, if the worker had been in
a relationship of 'stable employment' with the employer.
The ECJ had created this category of claim in a ruling involving
Wolverhampton Healthcare NHS Trust. It said that "where there has
been a stable employment relationship resulting from a succession
of short-term contracts concluded at regular intervals" a person
could make a claim within six months of the end of a chain of such
contracts.
The EHRC argued that Slack and her colleagues were in a position
of 'stable employment' and the Court agreed in relation to Slack
and one of her colleagues. It has sent the case of the third person
back to the Employment Tribunal system to make a closer assessment
of the facts of her case.
The ruling will make it possible for a greater number of workers
to make equal pay claims for a longer amount of time. Claims can
still only be made, though, in relation to the previous six years
of work in England and five years in Scotland.
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