"1. I have before me (sitting alone at the request of the parties) a further range of test cases in the part-time worker pension litigation, which are claims (perhaps some 60,000 in number) brought by part-time employees, mostly women, under sections 1 and 2 of theEqual Pay Act 1970 as modified by theOccupational Pension Schemes (Equal Access to Membership) Regulations 1976 [SI 1976/142] and Article 141 (formerly 119) of the Treaty of Rome alleging discrimination in a matter relating to pay, namely denial of access to membership of their employer's occupational pension schemes, the scheme rules laying down minimum qualifying hours thresholds with which, as part time workers, they could not comply. That qualifying threshold, it is claimed, was indirectly discriminatory against women, (hence the need to invoke Art 141, which disapplies the domestic provisions to the extent that they did not encompass claims based on indirect discrimination, in respect of periods of claim prior to 31 st May 1995 when the domestic legislation was amended) as the great majority of the part time workforce in the United Kingdom is female. A more detailed exposition of the background to theses cases and the case management techniques adopted to deal with them can be found in the opening paragraphs of my Decision on certain preliminary issues of December 1995 and it would be idle to repeat them here. Suffice it to say that the first decision dealt with a range of preliminary issues of universal application, such as time limits and the backdating of periods of claim. The appeal process culminated in two decisions of the House of Lords on 5 th February 1998 and 8 th February 2001, the latter after a reference of certain questions to the European Court of Justice. 2. The parties have always understood that a second round of test cases would be necessary. The second round has generally been referred to as the common points, as it was anticipated that it would deal with issues which, whilst not of universal application, affected either all, or the majority of, cases within a sector or arose in similar form across a number of sectors. Inevitably perhaps, further universal points have been identified (whether an applicant must be able to identify a comparator; does an applicant lose her right to bring a complaint if she failed to opt into the scheme when the qualifying threshold was removed) or have arisen as a result of the judgments of the House of Lords (whether a stable employment relationship exists) and these have been included in the second round."
"(1) Each member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied. (2) For the purpose of this Article, 'pay' means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer."
"12(1) The Equal Pay Act shall be so modified as to provide that where a court or an industrial tribunal finds that there has been a breach of a term in a contract of employment which has been included in the contract, or modified, by virtue of an equality clause and which relates to membership of a scheme, or where it makes an order declaring the right of an employee to admission to membership of a scheme in pursuance of the equal access requirements, it may declare that the employee has a right to be admitted to the scheme in question with effect from such date ('the deemed entry date') as it may specify, not being earlier than whichever is the later of the following dates, namely – (a) 6 th April 1978; and (b) the date 2 years before the institution of the proceedings in which the order was made (2) The Equal Pay Act shall be so modified as to require that if the deemed entry date is earlier than the date of the declaration, the employer shall provide any such resources as are specified in paragraph (3) below."
"15(1) Subject to such exceptions as may be prescribed – (a) any term of a contract of service (whenever made) or any rule of a personal or occupational pension scheme to the effect that an employed earner must be a member of a personal or occupational pension scheme, of a particular personal or occupational pension scheme or of one or other of a number of particular personal or occupational pension schemes shall be void; and (b) any such term or rule to the effect that contributions shall be paid by or in respect of an employed earner to a particular personal or occupational pension scheme of which the earner is not a member, or to one or other of a number of personal or occupational pension schemes of none of which he is a member, shall be unenforceable for so long as he is not a member of the scheme or any of the schemes."
" (6D) Where a court or employment tribunal finds that there has been a breach of an equality clause which relates to the terms on which persons become members of the scheme – (a) the court or tribunal may declare that a person has a right to be admitted to the scheme in question with effect from such date ('the deemed entry date') as it may specify provided that such date may not be earlier than two years before the institution of the proceedings in which the order was made, and (b) when the court or tribunal so declares and the deemed entry date is earlier than the date of the declaration, the employer shall provide any such resources to the scheme as are specified in subsection (7D) below."
"1 Direct and indirect discrimination against women (1) In any circumstances relevant for the purposes of any provision of this Act, other than a provision to which subsection (2) applies, a person discriminates against a woman if – (a) on the ground of her sex he treats her less favourably than he treats or would treat a man, or (b) he applies to her a requirement or condition which he applies or would apply equally to a man but – (i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and (ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and (iii) which is to her detriment because she cannot comply with it. 6 Discrimination against applicants and employees (2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her - (a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them; (b) by dismissing her, or subjecting her to any other detriment."
"63 The requirement of equal access to occupational pension schemes was originally set out in sections 53 to 56 of theSocial Security Pensions Act 1975 . 64 Implementation of the requirement of equal access to pension schemes before 1 st January 1996 was through the 1970 Act as modified by theOccupational Pension Schemes (Equal Access to Membership) Regulations 1976 ('the 1976 Regulations') and subject to Article 141. From 1 st January 1996 when sections 6(1A) and (2) of the 1970 Act were repealed, claims in respect of access to pension schemes have been made pursuant to section 1 of the 1970 Act together with regulations 9 to 11 of theOccupational Pension Schemes (Equal Treatment) Regulations 1995 ('the 1995 Regulations'). 65 The statutory schemes impose a requirement that equal access to pension schemes should be provided. The domestic remedy in respect of the right to retroactive membership of a pension scheme is a declaration of right: see regulation 12 of the 1976 Regulations and regulation 10 of the 1995 Regulations. This accords with the decision of the European Court of Justice in Preston v Wolverhampton Healthcare NHS Trust (Case C-78/98 )[2000] ICR 961 at paragraph 37 at 997: ' … the object of such a claim is not to obtain, with retroactive effect, arrears of benefits under the occupational pension scheme but is to secure recognition of the right to retroactive membership of that scheme for the purpose of evaluating the benefits to be paid in the future'."
"1(2) In any circumstances relevant for the purposes of any provision to which this subsection applies, a person discriminates against a woman if – (a) on the ground of her sex, he treats her less favourably than he treats or would treat a man, or (b) he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but – (i) which is such that it would be to the detriment of a considerably larger proportion of women than of men, and (ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and (iii) which is to her detriment.."
"In what circumstances is there a breach of the equality clause in respect of that period of an applicant's claim which predates her becoming eligible to join the scheme, if she failed to join the scheme upon becoming eligible."
"1. An applicant's claim in respect of a period of exclusion from a scheme will not fail merely because she did not join the scheme upon becoming eligible to do so. 2. There is a breach of the equality clause, in respect of which an applicant will normally be entitled to a declaration of right of access to membership of the scheme, for any period of claim during which the applicant was excluded from membership because of her part-time hours and her full-time comparator was obliged to be a member of the scheme. Whether the applicant did or did not join the scheme on becoming eligible to do so, or only joined after a significant delay, is irrelevant."
"180. I must now briefly deal with those cases which fall between test issues 5.1(b) and 5.2(a), that is applicants whose claims include periods when they remained excluded from the scheme by virtue of their part-time hours but membership of the scheme was not obligatory for full-timers. In these cases, the applicants' failure to join the scheme upon becoming eligible to do so, or only after a significant delay (any applicant can, I think, be afforded a period of grace to make up her mind which would not jeopardise her earlier claim but in respect of which, as the scheme rules no longer excluded her, a claim would not lie) may be highly relevant in determining whether there has been a breach of the equality clause. Here I think the respondents are right when they submit that there has been no less favourable treatment, or the applicant has not suffered a detriment if, although excluded from membership by the rules of the scheme, she would not have joined even if she had been given the opportunity."
"3. There is no breach of the equality clause for any period of claim during which an applicant was excluded from membership of the pension scheme because of her part-time hours but membership of the scheme for her full-time comparator was not obligatory, where an applicant did not join the scheme on becoming eligible to do so, or only joined after a significant delay, unless the applicant can satisfy the tribunal on the balance of probabilities that she would have joined the scheme during the period of exclusion, had she been eligible."
"24 In the first of its questions the national court asks whether a staff policy pursued by a department store company excluding part-time employees from an occupational pension scheme constitutes discrimination contrary to article 119 where that exclusion affects a far greater number of women than men. 25 In order to reply to that question reference must be made to the judgment of31 March 1981 in Jenkins v Kingsgate (Clothing Productions) Ltd . (Case 96/80)[1981] ICR 592 . 26 In that judgment the court considered the question whether the payment of a lower hourly rate for part-time work than for full-time work was compatible with article 119. 27 Such a practice is comparable to that at issue before the national court in this case: Bilka does not pay different hourly rates to part-time and full-time workers, but it grants only full-time workers an occupational pension. Since, as was stated above, such a pension falls within the concept of pay for the purposes of the second paragraph of article 119 it follows that, hour for hour, the total remuneration paid by Bilka to full-time workers is higher than that paid to part-time workers. 28 The conclusion reached by the court in its judgment of31 March 1981 is therefore equally valid in the context of this case. 29 If, therefore, it should be found that a much lower proportion of women than of men work full-time, the exclusion of part-time workers from the occupational pensions scheme would be contrary to article 119 of the Treaty where, taking into account the difficulties encountered by women workers in working full-time, that measure could not be explained by factors which exclude any discrimination on grounds of sex. 30 However, if the undertaking is able to show that its pay practice may be explained by objectively justified factors unrelated to any discrimination on grounds of sex there is no breach of article 119. 31 The answer to the first question referred by the national court must therefore be that article 119 of the EEC Treaty is infringed by a department store company which excludes part-time employees from its occupational pension scheme, where that exclusion affects a far greater number of women than men, unless the undertaking shows that the exclusion is based on objectively justifiable factors unrelated to any discrimination on grounds of sex."
"13 The reasoning behind [Bilka] is that if, as can be seen from the judgment of31 March 1981 in Jenkins v Kingsgate (Clothing Productions) Ltd (Case 96/80)[1981] ICR 592 , a pay policy which consists of setting a lower hourly rate for part-time work than for full-time work may in certain cases entail discrimination between men and women, the same applies where part-time workers are refused a company pension. Since such a pension falls within the concept of 'pay', within the meaning of the second paragraph of article 119, it follows that, hour for hour, the total remuneration paid by the employer to full-time workers is higher than that paid to part-time workers: see Bilka-Kaufhaus[1987] ICR 110 , 125, para. 27. 14 It follows that an occupational pension which excludes married women from membership entails discrimination directly based on sex, contrary to article 119 of the Treaty. 15 The answer to the first question must therefore be that the right to join an occupational pension scheme falls within the scope of article 119 of the Treaty and is therefore covered by the prohibition of discrimination laid down by that article."
"I would now on the special facts of this case accept the argument of Mr Elias that the rules of discrimination are not engaged. In my view therefore the scheme does not offend against the principle of equal pay for equal work and is therefore not unlawful."
"105. My only reservation is that the test of detriment as expressed by Brightman LJ in Ministry of Defence v Jeremiah[1980] ICR 13 , 31, cited by Lord Hoffmann in Chief Constable of the West Yorkshire Police v Khan[2001] ICR 1065 , 1077-1078, paragraph 53 (see paragraphs 33 and 35 of Lord Hope's opinion), namely, that 'a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment', must be applied by considering the issue from the point of view of the victim. If the victim's opinion that the treatment was to his or her detriment is a reasonable one to hold, that ought, in my opinion, to suffice. In Khan the complainant, desiring to apply for a new job, wanted a reference to be given by his employers. His employers refused to give one. It was clear that if they had given one it would have been an unfavourable one. It might be said that a reasonable worker would not want an unfavourable reference. But the complainant wanted to be treated like all other employees and to be given a reference. The House concluded that this was a reasonable attitude for him to adopt and that the refusal to give him a reference constituted 'detriment'. He was being deprived of something that he reasonably wanted to have. And, while an unjustified sense of grievance about an allegedly discriminatory decision cannot constitute 'detriment', a justified and reasonable sense of grievance about the decision may well do so. On the facts of the present case I agree with Lord Hope that the applicant was entitled to a finding that she was subjected to a detriment within the meaning of article 8(2)(b) of the 1976 Order. Lord Hope, too, at page 349 paragraph 35 said this: "
"177. … Where an applicant was always eligible to join a pension scheme but did not do so, or did not do so after becoming eligible to join, she has no cause of action in the employment tribunal beyond the date on which she became eligible to join as the requirement to opt into the scheme did not breach the equality clause."
"178. … On the 6 th June 1974, Mrs Lount commenced work with Torbay Health Authority working 20 hours a week rising to 30 in June 1977. She joined the NHS pension scheme on the 1 st January 1989. However, she had always been eligible to join the scheme because her hours were never less than half full time hours. Sometime in the mid to late 1970's, the date cannot now be ascertained, she signed a form expressly choosing not to opt into the scheme."
"176 During any period of time when the full-time comparator was obliged to be a member of the scheme and could not opt out, the requirement on eligible part-timers to opt in could not be less favourable treatment given Miss McNeill's concession, which is plainly right, that some people do not want to join a pension scheme. ... "
"172. I accept the submission of the respondents that Regulation 9, read with Regulation 10, in fact demonstrates the reverse of the proposition for which Miss Findlay contends, namely that whilst abolishing direct discrimination by requiring the employer to make pension terms the same for both male and female employees, it recognised the value of the ability not to be a member of a scheme and therefore preserved the voluntary nature of existing schemes for existing employees, who, on Miss Findlay's analysis of the reasoning behind the Regulations, must be presumed to be largely female. The point becomes all the clearer when one sees that the regulations were made on the 3 rd February 1976 but did not come into effect until the 6 th April 1978 and that the qualifying date for retaining the right to voluntary membership was the 5 th April 1978 not the 2 nd February 1976. Ultimately then, these Regulations cannot be presumed to be anything more than what they claim to be on their face – equalising – and it would be wrong to conclude that in equalising terms of access they are necessarily making value judgments."
"184. These issues involve applicants who, for reasons which can loosely be attributed to the fault of the employer, did not join the scheme after the eligibility rules changed ."
"192. I would therefore answer test issues 5.2(b) and (c) as follows: 1. There is a continuing breach of the equality clause, and therefore an applicant's cause of action continues beyond the date on which she became eligible to join her employers pension scheme, if, after the removal of any qualifying hours threshold with which she could not comply, an applicant's continued failure to join, or inability to gain access to, the scheme (a) is directly referable to her status as a part-time employee; (b) the circumstances do not apply to full-time employees and (c) is to her detriment. 2. This would be the case where an applicant, on becoming eligible to join a pension scheme, did not do so because she was unaware of her right to join because of her employer's failure to inform her of the right: or where an applicant who believed she might have the right to join was misled by her employer, intentionally or unintentionally into believing that she did not have the right, or whose employer denied that she had the right. 3. There would not be a breach of the equality clause if on seeking to join the scheme an applicant was either discouraged or dissuaded from joining, unless this was as a result of a policy of the employer, aimed at part-timers and involved the imposition of conditions not imposed on full-timers, or a campaign of deliberate misinformation, or otherwise amounted in practice to a denial of the right to membership of the scheme."
"I think there is force in the submission that, since the employee's entitlement to enhance his pension rights by the purchase of added years is of no effect unless he is aware of it and since he cannot be expected to become aware of it unless it is drawn to his attention, it is necessary to imply an obligation on the employer to bring it to his attention to render efficacious the very benefit which the contractual right to purchase added years was intended to confer. ... I would define it as the relationship of employer and employee where the following circumstances obtain: (1) the terms of the contract of employment have not been negotiated with the individual employee but result from negotiation with a representative body or are otherwise incorporated by reference: (2) a particular term of the contract makes available to the employee a valuable right contingent upon action being taken by him to avail himself of its benefit: (3) the employee cannot, in all the circumstances, reasonably be expected to be aware of the term unless it is drawn to his attention. I fully appreciate that the criterion to justify an implication of this kind is necessity, not reasonableness. But I take the view that it is not merely reasonable, but necessary, in the circumstances postulated, to imply an obligation on the employer to take reasonable steps to bring the term of the contract in question to the employee's attention, so that he may be in a position to enjoy its benefit. Accordingly I would hold that there was an implied term in each of the plaintiffs' contracts of employment of which the boards were in each case in breach."
"Where her reason for not opting into the scheme was because of her employer's failure to alert her to the possibility of doing so, her employer may be in breach of implied terms of the contract of employment but not of the equality clause."
" 'Where the relevant national legislation restricts backdating entitlement in the event of a successful claim to a period of two years prior to the date on which the claim was made, does this amount to the denial of an effective remedy under Community law and is the industrial tribunal obliged to disregard such provisions in domestic law if it feels necessary to do so?' The European Court said this: '37. The court has consistently held that, in the absence of relevant Community rules, it is for the national legal order of each member state to designate the competent courts and to lay down the procedural rules for proceedings designed to ensure the protection of the rights which individuals acquire through the direct effect of Community law, provided that such rules are not less favourable than those governing similar domestic actions and are not framed in such a way as to render impossible in practice the exercise of rights conferred by Community law: see, to that effect [inter alia] Rewe-Zentralfinanz e.G (Case 33/76) [1976] E.C.R.@ p 1997-1998 paras. 5 and 6 ... 41. As far as this issue is concerned, it must be stated that application of a procedural rule such as regulation 12 whereby, in proceedings concerning access to membership of occupational pension schemes, the right to be admitted to a scheme may have effect from a date no earlier than two years before the institution of proceedings, would deprive the applicants of the additional benefits under the scheme to which they are entitled to be affiliated, since those benefits could be calculated only by reference to periods of service completed…..two years prior to commencement of proceedings by them. 42. However, it should be noted that, in such a case, the claim is not for the retroactive award of certain additional benefits but for recognition of entitlement to full membership of an occupational scheme through acquisition of mental health officer status which confers entitlement to the additional benefits. 44. Consequently, unlike the rules at issue in the Judgments (in Steenhorst-Neerings (Case C-338/91 )[1993] ECR I-5475 and Johnson –v- Chief Adjudication Officer (Case C-410/92 [1995] ICR 375 ) which in the interests of legal certainty merely limited the retroactive scope of a claim for certain benefits and did not strike at the very essence of the rights conferred by the Community legal order, a rule such as that before the national court in this case is such as to render any action by individuals relying on Community law impossible in practice. 47. Accordingly, the reply to be given to the second question must be that Community law precludes the application, to a claim based on Article [141] of the E.C. Treaty for recognition of the claimant's entitlement to join an occupational pension scheme, of a national rule under which such entitlement, in the event of a successful claim, is limited to a period which starts to run from a point in time two years prior to commencement of proceedings in connection with the claim' "
" '1(a) Is a national procedural rule which requires that a claim for membership of an occupational pension scheme …which is brought in the [employment] tribunal, be brought within the six months of the end of the employment to which the claim relates: (b) a national procedural rule which provides that a claimant's pensionable service is to be calculated only by reference to service after a date falling no earlier than two years prior to the date of her claim;……compatible with the principle of Community law that national procedural rules for breach of Community law must not make it excessively difficult or impossible in practice for the claimant to exercise her rights under Article [141]. 3. In circumstances where: (a) an employee has served under a number of separate contracts of employment for the same employer covering defined periods of time and with intervals between the periods covered by the contracts of employment; (b) after the completion of any contract, there is no obligation on either party to enter into further such contracts; and (c) she initiates a claim within six months of the completion of a later contract or contracts but fails to initiate a claim within six months of any earlier contract or contracts: is a national procedural rule which has the effect of requiring a claim for membership of an occupational pension scheme from which the right to pension benefit flows to be brought within six months of the end of any contract or contracts of employment to which the claim relates and which, therefore, prevents service under any earlier contract or contracts from being treated as pensionable service, compatible with: (1) the right to equal pay for equal work in Article [141] of the E.C. Treaty; and (2) the principle of Community law that national procedural rules for breach of Community law must not make it excessively difficult or impossible in practice for the claimant to exercise her rights under Article [141]?' "
"1. Community law does not preclude a national procedural rule which requires that a claim for membership of an occupational pension scheme (from which the right to pension benefits flows) must, if it is not to be time-barred, be brought within six months of the end of the employment to which the claim relates, provided, however, that that limitation period is not less favourable for actions based on Community law than for those based on domestic law. 6. Community law precludes a procedural rule which has the effect of requiring a claim for membership of an occupational pension scheme (from which the right to pension benefits flows) to be brought within six months of the end of each contract of employment to which the claim relates where there 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."
"209. (b) Cockrill-v-Wolverhampton Metropolitan Borough Council (1) Secretary of State for Education (2). Mrs Cockrill presented her IT1 on 19 th December 1994. She had been employed by Wolverhampton at all material times, first as a supply and temporary teacher between February 1985 and November 1987 (the period of claim), thereafter in a full time pensionable teaching post. During the period of claim, she has identified fourteen separate assignments of varying durations, between which there were some gaps, not exclusively because of school holidays. Mrs Cockrill's case raises two questions: first, was there a stable employment relationship in existence during the period of claim; secondly, if so, did it come to an end, and therefore cause time to run for the purposes of section 2(4), when she took up the full time, pensionable, position. (e) Kilburn-v-Lancashire County Council (1) Secretary of State for Education (2). Mrs Kilburn presented her IT1 on 4 th January 2001. She was employed by Lancashire as a part-time supply teacher from 1967 (although the period of claim is of course limited to service after 8 th April 1976). She worked in term time with some gaps and, at least once, during the summer holiday. She then took a permanent, pensionable position. Two questions arise: did the pattern of her part-time supply teaching create a stable employment relationship and if so did it survive the change to pensionable employment? (f) Bunyan –v- Hereford College of Technology (1) Secretary of State for Education (2) Worcestershire County Council (as successor to Hereford and Worcester County Council) (3) and Hereford Sixth Form College (4). Mrs Bunyan presented her IT1 on 8 th December 1994 claiming that she was denied access to the Teachers Pension Scheme between 15 th September 1980 and 13 th June 1984 when she was a part-time psychology lecturer employed by the County Council to work at the Technical College. Since September 1984 she has been in full time pensionable employment initially at the Technical College and from 1 st September 1992 at the Sixth Form College. Both colleges became independent Further Education Colleges from the 1 st April 1993. Mrs Bunyan's case raises three issues: was there a stable employment relationship during the period of claim: did it survive her translation to full time pensionable employment: if so, did it survive the change of college in 1992."
"247. (d) The concept of the stable employment relationship was devised to reconcile the need for legal certainty in the running of time limits with the excessive difficulty caused to employees employed under a series of short term contracts in enforcing their rights under Art 141. But with the ending of the series of short term contracts, that difficulty, and with it the need for the added protection of the stable employment relationship, ended. The ending of the sequence of short term contracts, albeit by their replacement with a full-time fixed term contract (a fortiori when that in turn became permanent a year later) caused time to run against Mrs Bunyan."
"250. (i) This seems to me to be pre-eminently one of what I suspect will be a fairly rare instance of a pattern of intermittent working which is capable of being a stable employment relationship. Where such occurs, the expectations, in the sense of intention rather than hope, of the parties is of paramount importance. The question of whether Mrs Jones and Stockport had the necessary expectations of each other to create a stable employment relationship is remitted for hearing by a full tribunal at Manchester."
"In our judgment the legal position is as follows : (1) The scheme of the 1970 Act is that the principle of equal pay for equal work, without discrimination based on sex, takes effect through the mechanism of an equality clause introduced by statute into a particular contract of employment. The 1970 Act does not contain any provisions for employment under different contracts with the same employer to be treated as continuous employment cf. [Part XIV Chapter 1Employment Rights Act 1996 ]. (2) Section 2(4) bars a claimant if the claimant: '…has not been employed in the employment within six months preceding the date of the reference.' (3) The earlier reference in section 2(4) to 'employment' is in the context of the nature of the claim, i.e. a claim 'in respect of an equality clause relating to a woman's employment'. Such a claim is in respect of a particular contract of employment, because an equality clause is a clause in or introduced into a specific contract of employment, either as a mater of express agreement or incorporated into the specific contract by statute. Under section 1(6)(a) 'employee' is defined, only for the purposes of section1 as employed under a contract of service'. (4) The second reference to 'employment' in section 2(4) is in the context of a limitation on the jurisdiction of the [employment] tribunal to entertain such a claim. An [employment] tribunal has no jurisdiction in respect of the claim if the applicant 'has not been employed in the employment' within the specified period of six months. The 'employment' referred to in the jurisdictional context must, on a natural, ordinary and consistent reading of the provision, refer to the same employment in respect of which the claim is made. As that claim must be in respect of an equality clause in a particular contract, so the limit on jurisdiction must also be a reference to employment under the contact of employment containing the equality clause…. (5) If the applicant is employed under a succession of separate contracts of employment, the prima facie position is that she is not entitled to bring a claim in respect of the equality clause in any contract of employment which has expired more than six months prior to the bringing of the claim to the tribunal. (6) There are two possible modifications of the position…where there has been a succession of contracts- (a) where there is no break in fact in the employment under a succession of immediately consecutive contracts….. (7) This analysis of the position is consistent with the demands of legal certainty and fairness. The applicants accepted that, even on their contention, a part-time employee could not bring a claim within the time limits in section 2(4) in the case of irregular employment; if for example there was a five year gap between the two periods of working under different contracts with the same employer. The six month period would, in that case, start to run in respect of the first contract from the end of that contract, not from the end of the later contract under which he was re-employed. It is not possible to divorce section 2(4), which places a time limit on the enforcement of the right, from section 1, which defines the nature of the right conferred. They are rights in a particular contract. When that contract expires, the employment will also expire, even if another contract follows after the break and even if the break itself is related to the periodical nature of the work and the employee in fact does the same work contract after contract, term after term, year after year, for the same employer and will enjoy continuity of service for the purpose of enjoying and exercising other employment rights such as the right not to be unfairly dismissed: see Ford –v- Warwickshire County Council (1983)IRLR 126'."
"The notice of appeal asserts that the appeal tribunal was wrong in law in adopting this construction and they ought to have held that: '(a) The entirety of a claim is in time if the claim is made within six months of the end of the period of regular employment in which there are regular breaks in the contract of employment. (b) The entirety of the claim is in time if the claim is made within six months of the end of a period during which the applicant has been employed in irregular employment in the same capacity (for example supply teachers) whether or not there is an 'umbrella contract'.(c) There is no basis for placing a gloss on section 2(4) so as to require that the claim is made within six months of the ending of the same contract as that in respect of which the claim is made.' Mr Cavanagh…identifies four types of contract where breaks of service occur: (1) regular employment with regular breaks in the contract of employment (teachers with termly or academic yearly contracts); (2) irregular employment in the same capacity where there is an 'umbrella contract'; (3) irregular employment in the same capacity where there is no umbrella contract (supply teachers or home tutors); and (4) a complete break in employment followed by re-employment some years later. As regards category (2), the appeal tribunal acknowledged that where there is an umbrella contract there is a continuing contractual relationship. No point thus arises. [Counsel for the banking employees] contends that section 2(4) of the Act of 1970 does not in terms refer to the same contract of employment. It makes no sense for the time limit not to cover the whole period of a person's employment if the breaks in service flow from the nature of the work and are a direct consequence of it. A teacher may work year after year without a contract covering her for the school holidays, or, at least, the summer holidays. Nevertheless, she will be doing a full year's teaching work. The only difference between such a teacher and a full time teacher will be the way in which the employer decides to order its affairs….[emphasis in the original] …. I am unable to accept the argument advanced on behalf of the applicants. It is common ground that an umbrella contract constitutes a single contract of employment, so that time runs from the ending of it, not from the beginning of a break in service under it. Conversely the applicants accept that (as to [Mr Cavanagh's] category (4)) where there is a 'complete' break in employment, subsequent re-engagement by the same employer does not make time run afresh in relation to the earlier employment. The applicants contend, in reality, that the mere repetition of episodes of service, whether or not on a regular pattern, means that the employee is 'employed in' a single employment stretching over all the periods of employment. When sec 2(4) of the Act of 1970 is construed in the light of sections 1 and 2(1) the time limit which it imposes runs from the end of the contract of employment alleged to contain the equality clause in respect of which the claim is made. This construction does not involve placing a gloss by way of the addition of the word 'same' on the section. I accept [the submission of Counsel for the further education employers and the banking employers] that 'rather it entails giving section 2(4) a meaning consonant with the statutory scheme of which it forms part'. …. It follows that I am not persuaded that the legislature inadvertently overlooked the need to include provisions bridging breaks in service which relate to the nature of the work….Accordingly I cannot fault the approach of the Employment Appeal Tribunal on this issue."
"On this appeal two groups of questions have arisen…as to the compatibility of provisions of the [Equal Pay Act 1970 ], as amended, with Article 119 of the Treaty and which clearly must be decided before judgment can be given. The applicants contend, first, that the effect of the provision ofsection 2(4) of the Act of 1970, that a claim for membership of an occupational pension scheme…must be brought within six months of the end of the employment to which the claim relates, makes it impossible in practice or excessively difficult for claimants to exercise their rights under Article [141]… As to the requirement that a procedural rule must not be "impossible in practice" the applicants contend that the six-month limitation makes it impossible for them to claim the full amount of future benefits payable under the scheme since they cannot rely on years of past service in making the computation….' Later at p. 236 B – 238 B: "
"8. In the education sector, the applicants include applicants falling into the following categories: (1) Part-time teachers or lecturers who taught at the same school or college for a number of years and who were employed under a succession of contracts which lasted for the academic year only (known as 'sessional contracts'), with a break between contracts over the summer vacation from the end of one academic year to the beginning of the next. (2) Part-time lecturers who taught at the same school or college for a number of years and who were employed under a succession of fixed term contracts for each term ('termly contracts'), with breaks between contract during the school holidays and college vacations. Such contracts normally involved the teaching of a specific course and were therefore co-terminous with the course in question. They might therefore in some cases last the course in question. They might therefore in some cases last for less than a term. (3) Part-time teachers who, by reason of the nature of their jobs, worked intermittently. The said teachers worked when called on to do so by their local education authority employer and entered into a specific contract of employment which covered each period when they were called on to work. 9. It is possible for a succession of specific contracts for regular or short occasional work to be governed by another underlying, continuing, 'umbrella' contract which requires the employer to offer and the employee to accept work from time to time. The third question related to applicants employed under the types of contract described above when employment was not also covered by an 'umbrella' contract."
"23. Lastly, the distinguishing feature of a third series of cases is that the applicants worked regularly, but periodically or intermittently, for the same employer under successive legally separate contracts. According to the order for reference, such successive contracts may sometimes be covered by a framework contract (known as an 'umbrella contract'), under which the parties are required to renew their various contracts of employment, thereby establishing a continuous employment relationship. 24. Where there is no umbrella contract, the period provided for in section 2(4) of the Act of 1970 starts to run from the end of each contract of employment and not from the end of the employment relationship between the worker and the establishment concerned. As a result, a worker can secure recognition of periods of part-time employment for pension entitlement purposes only if he commences proceedings within the six months following the end of each contract covering the relevant employment."
"33 As regards the compatibility of a time requirement, such as that contained insection 2(4) of the Equal Pay Act 1970 , with the Community law principle of effectiveness, it is settled case law, and has been since Rewe-Zentralfinanz (1976) ECR 1989 , 1997-98, para. 5, that the setting of reasonable limitation periods for bringing proceedings satisfies that requirement in principle, inasmuch as it constitutes an application of the fundamental principle of legal certainty… 34. Contrary to the contention of the applicants in the main proceedings, the imposition of a limitation period of six months, as laid down insection 2(4) of the Equal Pay Act 1970 , even if, by definition, expiry of that period entails total or partial dismissal of their actions, cannot be regarded as constituting an obstacle to obtaining the payment of sums to which, albeit not yet payable, the applicants are entitled under Article [141] of the E.C. Treaty. Such a limitation period does not render impossible or excessively difficult the exercise of rights conferred by the Community legal order and is not therefore liable to strike at the very essence of those rights 35. The answer to the first part of the first question must therefore be that Community law does not preclude a national procedural rule which requires that a claim for membership of an occupational pension scheme…must, if it is not to be time-barred, be brought within six months of the end of the employment to which the claim relates, provided, however, that that limitation period is not less favourable for actions based on Community law than for those based on domestic law."
"65. This question relates to a number of actions before the national court which are distinguished by the fact that the claimants work regularly, but periodically or intermittently for the same employer, under successive legally separate contracts. According to the order for reference, in the absence of an umbrella contract, the period prescribed insection 2(4) of the Equal Pay Act 1970 starts to run at the end of each contract of employment and not at the end of the employment relationship between the worker and the establishment concerned… 66. In its written observations, the Commission maintains that the application of a procedural rule of that kind to actions brought by such workers is incompatible with the principle of effectiveness in two respects. First, that procedural rule compels workers wishing to have their periods of part-time employment recognised for the purpose of calculating their pension rights to bring a continuous series of actions in respect of each contract under which they have performed the work concerned. Secondly, such a rule precludes inclusion of all past service of the workers concerned in the calculation of their retirement benefits even where such service formed part of a continuous employment relationship. Any such workers who brought their first legal actions within the six months following the end of their last contract of employment would be deprived of the possibility of having service under their previous contracts recognised. 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 inasmuch 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 difficult 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 a 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 E.C. 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 contracts 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 that to which the pension scheme applies. 71. A 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 claim 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 there 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."
"Future pension benefits have therefore to be calculated by reference to full - and part-time periods of service subsequent to8 April 1976 , the date of the court's judgment in Defrenne v Sabena[1976] ICR 547 ."
"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."
"... an important consideration is the nature of the alleged variation. In order to amount to a rescission it must be so fundamental that nobody could claim that the original contract was still in being. On the other hand, the new terms may be on such minor matters that really the only common sense of the case is that the original contract is in being, subject to slight variations. In other words, each case must depend upon the circumstances of the case."
"Promotion by consent between the parties involves variation of the existing contract of employment, but it is in the highest degree artificial to think of a man who is promoted from being chargehand to a foreman as a result of negotiations between him and his master, being described as 'dismissed'."
"An employee may be off sick, on holiday or simply not required to attend for work. Until the contract of employment is materially varied or terminated the employee remains employed in the employment."
"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."
"224. It is immediately apparent that this gives rise to very considerable practical difficulties as both linguistically and conceptually, 'regular' and 'intermittent' are contradictory, perhaps incompatible. An analysis of the essential ingredients of the stable employment relationship which are to be found both in the judgment of the court and propositions derived from it, will throw such light as can be generated onto the problem."
"It is simply inconsistent with the nature of a stable employment relationship that the fundamentals of the succeeding contracts should vary. … The work must be for the same employer and be broadly the same throughout; that is it will be supply teaching though not necessarily at the same schools, or the same subject at the same key stages; or home teaching, but not necessarily the same subjects, or to the same pupils.... broadly the same throughout."
'… in other cases, the appellants worked regularly, but periodically or intermittently, for the same employer, with each period of work technically being under a separate contract of employment but with each contract containing the same terms and with the employment in total being relevant for pension purposes (but for it being part-time work)'
"The work must be for the same employer and be broadly the same throughout; that is it will be supply teaching though not necessarily at the same schools, or the same subject at the same key stages; or home teaching, but not necessarily the same subjects, or to the same pupils."
"Article 3 1. The transferor's rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer within the meaning of Article 1(1) shall, by reason of such transfer, be transferred to the transferee. Member States may provide that, after the date of transfer within the meaning of Article 1(1) and in addition to the transferee, the transferor shall continue to be liable in respect of obligations which arose from a contract of employment or an employment relationship. 2. Following the transfer within the meaning of Article 1(1), the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement, until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement. . .. 3. Paragraphs 1 and 2 shall not cover employees' rights to old-age, invalidity or survivors' benefits under supplementary company or inter company pension schemes outside the statutory social security schemes in Member States."
"5 Effect of relevant transfer on contracts of employment, etc. (1) ... a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor in the undertaking or part transferred but any such contract which would otherwise have been terminated by the transfer shall have effect after the transfer as if originally made between the person so employed and the transferee. (2) Without prejudice to paragraph (1) above, but subject to paragraph (4A) below, on the completion of a relevant transfer – (a) all the transferor's rights, powers, duties and liabilities under or in connection with any such contract, shall be transferred by virtue of this Regulation to the transferee; and (b) anything done before the transfer is completed by or in relation to the transferor in respect of that contract or a person employed in that undertaking or part shall be deemed to have been done by or in relation to the transferee. (3) Any reference in paragraph (1) or (2) above to a person employed in an undertaking or part of one transferred by a relevant transfer is a reference to a person so employed immediately before the transfer, including, where the transfer is effected by a series of two or more transactions, a person so employed immediately before any of those transactions. (4) Paragraph (2) above shall not transfer or otherwise affect the liability of any person to be prosecuted for, convicted of and sentenced for any offence. (4A) Paragraphs (1) and (2) above shall not operate to transfer his contract of employment and the rights, powers, duties and liabilities under or in connection with it if the employee informs the transferor or the transferee that he objects to becoming employed by the transferee. (4B) Where an employee so objects the transfer of the undertaking or part in which he is employed shall operate so as to terminate his contract of employment with the transferor but he shall not be treated, for any purpose, as having been dismissed by the transferor. (5) ... without prejudice to any right of an employee arising apart from these Regulations to terminate his contract of employment without notice if a substantial change is made in his working conditions to his detriment; but no such right shall arise by reason only that, under that paragraph, the identity of his employer changes unless the employee shows that, in all the circumstances, the change is a significant change and is to his detriment."
"18 We have concluded that the appeal tribunal's interpretation of section 2(4) was correct. It appears to us that, on the ordinary natural meaning of the words, section 2(4) requires an applicant to lodge her application within six months of the termination of her employment. We think that the definitions provided in section 1(6) must be applied to section 2 as well as section 1. So 'employed in the employment' in section 2(4) must mean 'employed under a contract of service'. That accords with the House of Lords decision in Preston[1998] ICR 227 . There is a distinction within sections 1 and 2 between the words 'employment' and 'work'. In our view, the distinction intended is that 'employment' refers to the contract of employment and 'work' refers o the actual job the employee was doing. So, for example, for a claim under section 1(2)(c) the woman has to prove two distinct things: first that she was doing work of equal value to that of a man whom she names as her comparator and second that she and the male comparator were in the 'same employment'. It is clear that the man and woman may be doing different jobs while in the same employment. So 'employment' must relate to the contract of employment. Section 2(4) imposes a limitation period by reference to the termination of employment. In our view, there is jurisdiction provided that the applicant brings her claim within six months of the termination of her contract of employment."