Judith Anne Wilkes v. Dundee City Council & Anor [2007] UKEAT 0041_06_1601

EAT
Judith Anne Wilkes v. Dundee City Council & Anor
[2007] UKEAT 0041_06_1601 · 2007-01-16
For the First Respondents For the Second Respondents Mr C McNeill Advocate Instructed by: Dundee City Council Legal Services 21 City Square Dundee DD1 3BY Mr B Napier QC Instructed by: Ms A D Davies Scottish Executives Solicitors Office Legal and Parliamentary Services Victoria Quay EH6 6QQ

SUMMARY

Temporary music teacher's claim for exclusion from pension scheme. Application of Preston cases and Jeffrey v Secretary of State for Education & ors [2006] ICR 1062 . Claim time-barred. Obiter discussion of whether limitation period runs from end date of last of a series of short-term contracts or from a later date.

THE HONOURABLE LADY SMITH

Introduction

[1] The claimant is a retired piano teacher. She worked for the first respondents ("DCC") and their predecessors from 1968 until her retiral on 20 April 2002. Most of her teaching was carried out at Forthill Primary School but she also taught at other schools from time to time.[2] This is the claimant's appeal against a decision of the Employment Tribunal that it did not have jurisdiction to entertain her claim because it was out of time under the provisions of s.2(4) of the Equal Pay Act 1970.[3] The claimant was admitted to the Local Government Superannuation Scheme ("LGSS") in September 1990. On 24 November 1992, she presented an application to the Employment Tribunal at Dundee in which she complained of her exclusion from that scheme during the period 1968 to August 1990 under reference to the equality clause provisions of the Equal Pay Act 1970. The respondents contended and contend that that claim was brought out of time since it was not brought within the period of six months following the cessation of the employment in respect of which the claim was brought. At the relevant time, s.2(4) of the Equal Pay Act 1970 provided that no claim in respect of the operation of an equality clause relating to a woman's employment could be referred to the tribunal:
"… if she has not been employed in the employment within the six months preceding the date of the reference."
Following a pre-hearing review, the tribunal in Dundee, Chairman Mr SFR Patrick, sitting alone, determined that it did not have jurisdiction to entertain the claim since it was out of time.

Background Facts

[4] The details of the claimant's working history are set out in full by the tribunal. For present purposes it is sufficient to note that the claimant worked under a series of short term temporary contracts until August 1990 when she was formally appointed as a permanent part-time music instructor. As from August 1988, the temporary appointments were on a termly basis with the appointment being offered to her formally by letter prior to the start of each term and, in the case of the autumn term, prior to the start of each half of the term. She did not receive holiday pay and she was not obliged to work during school holidays subject to, before each academic session, her being asked to prepare and submit a draft timetable, a task which took no more than half a day. She accepted that if, at the beginning of any session prior to her receiving a permanent appointment the respondents had not offered her a contract for that session, there was "nothing she could have done about it", a finding which I take to be to the effect that she accepted that the respondents were under no obligation to keep offering her work.[5] Early in 1990, the claimant began asking about her eligibility to join the LGSS and, as a result, obtained information about the possibility of a permanent part-time appointment. She applied to transfer from a temporary to a permanent post in June or July 1990 and she was offered a permanent part-time post thereafter on 27 July 1990, an offer which she accepted on 13 August 1990. Thereafter, her contract had permanency and was not subject to the fixed terms that her previous contracts had been. In all other material respects the new permanent contract was the same as the previous short fixed term ones. The tribunal found as fact, at paragraph 44, that:
"… in August 1990 the claimant was employed under a new permanent contract which was a contract separate from the previous short fixed-term contracts and was not an amendment of them or of any other contract."
[6] No attempt is made to challenge that finding of fact on appeal. The relevant factual basis can, accordingly, be summarized as being that during the period 1968 to July or August 1990, the claimant was employed under a series of short term contracts but from August 1990 to her retiral in 2002, she was employed under a single permanent contract.

Issues addressed by the Tribunal

[7] There was essentially one issue for the Tribunal to determine, namely that of whether or not the claim had been timeously presented or not. That depended on when time started to run. I have already referred to the relevant six month statutory provision. The claimant's position was that the employment in respect of which her claim was made was employment covered by a global contract which had subsisted from August 1968 until her retirement. Her claim was, accordingly, timeously presented, having been lodged during her employment. Whilst recognizing that the cases of Preston & ors v Wolverhampton Healthcare NHS Trust & ors [2000] IRLR 506 – ECJ and Preston & ors v Wolverhampton Healthcare NHS Trust & ors (No 3) [2004] IRLR 96 might appear to be against that submission, it was argued that the ECJ Preston case was not binding because it did not apply to global contracts and that Preston (No 3) did not apply to such cases either.[8] The respondents' position was that whilst there had been a stable employment relationship between the parties until June 1990, namely during the period that the temporary contracts were being offered and accepted, it ended at that point. The permanent appointment was a new and separate contract without a fixed term. The claimant's complaint was in respect of her exclusion from the LGSS during the period of her temporary contracts. She had not lodged her complaint with the Tribunal within six months of the end of those contracts and her claim was, accordingly, time barred.

Tribunal's Decision

[9] The tribunal considered whether, on the evidence, throughout her period of employment with the respondents and their predecessors, the claimant had been employed on what has been referred to in certain authorities as a "global contract". It noted that the contention for the claimant was that she was employed under a global contract which consisted of an obligation on the part of the respondents to offer her a fixed term contract to carry out the work of a part- time music teacher and for her to accept that contract and work for them; that global contract was, it was contended, simply varied in August 1990 when the claimant entered into a permanent contract of employment. That argument was, however, on a consideration of the facts of the case, rejected.[10] The tribunal found that the claimant's approach involved a blurring of the distinction that existed between the series of fixed term contracts that had been entered into for many years and the new arrangement whereby the claimant was employed on a permanent contract. At paragraph 42, it states:
"It seemed to me that Mr O'Carroll's approach to the evidence suggested that it was sufficient to establish a global contract to show that that both the claimant and the first respondents recognised that the relationship which emerged from the succession of fixed-term contracts was both long-term and likely to continue. The evidence as a whole established to my satisfaction that the relationship between the parties was a long-term one and one which encouraged on both sides an expectation that it would continue, that is, that each successive fixed-term contract would be offered and accepted. I find nothing in that evidence to suggest that there existed in the period between the successive fixed-term contracts the necessary mutuality of obligation discussed above which might establish a global contract."
The tribunal also specifically rejected the submission that the circumstances of the present case were such as to indicate that the principles set out in the ECJ Preston case and in Preston (No 3) were not applicable to it.[11] The Tribunal did, however, in reaching its decision, express some concerns. These are set out at paragraphs 49-53:
"49. In reaching this decision I have some sympathy for the claimant. It is understandable that someone in her position should take the view that the substitution of a permanent contract for a succession of short fixed-term contracts, rather than ending a stable employment relationship, reinforces it. As it happens, in her case the substitution of the permanent contract resolved the issue of the equality clause in her contract and she was able to and did join the pension scheme. Had the substitution of the permanent contract not resolved the equality clause issue yet caused time to run on a claim for a breach of the equality clause from the end of the last short fixed-term contract I would have had even more sympathy for her.
50. The ECJ in Preston gave "a stable employment relationship" a specific context in relation to determining how the time limit should apply in relation to a succession of short fixed-term contracts. The finding of the ECJ as interpreted by the House of Lords in Preston No 2 is not that time begins to run from when the stable employment relationship ends but that time runs from the end of the last contract in the series. It was put this way by Lord Slynn of Hadley in paragraph 33 of the House of Lords judgment:-
"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."
51. If when the last of her fixed-term contracts ended on 27 June 1990 there had been no question of the claimant obtaining a permanent contract but it had been anticipated that she would be offered a further short fixed-term contract she would no doubt have been entitled to regard herself even after 27 June as having a stable employment relationship with the first respondents. If, contrary to expectation, they had belatedly announced to her on, say, 15 August, shortly before the new term was to begin, that they were not going to give her any more contracts the stable employment relationship would have been at an end. The starting point for time to run on her claim would in those circumstances have been 27 June and not 15 August. That would mean in effect a limitation period of less than the six months prescribed by the 1970 Act.52. I recognise that neither the House of Lords nor the ECJ specifically addressed the point which arises in this case and was addressed by Judge McMullen in Preston No 3 , that is, the effect on when time begins to run of a series of short fixed-term contracts constituting a stable employment relationship being superseded by a permanent contract relating to the same employment to which the same pension scheme applies. Nonetheless, I do not think that any other interpretation was open to Judge McMullen having regard to the terms of the ECJ judgment and the judgment of the House of Lords in Preston No 2 . The question referred to the ECJ by the House of Lords in Preston was one related to cases involving a succession of short fixed-term contracts and did not contemplate the circumstances which have arisen in the present case. The answer given by the ECJ was based on its conclusion (paragraph 68 of the judgment) 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 Treaty excessively difficult.' The Court went on to state that where there is a stable employment relationship arising from a succession of fixed-term contracts it is possible to fix a precise starting point for the limitation period. It fixed that point as the date on which the sequence of fixed-term contracts was interrupted. It had no reason to address the issue before it in the specific context of a series of short fixed-term contracts being superseded by a permanent contract.53. It seems to me that the issue which the claimant seeks to raise in this case (and which could arise even more starkly in a case where the substitution of a permanent contract does not resolve the equality clause issue) is not whether it is correct to say that when a series of short fixed-term contracts is superseded by a permanent contract the sequence is interrupted in the sense contemplated by the ECJ in Preston but whether the fact that the permanent contract has that effect and sets the limitation period running from the end of the last fixed-term contract 'renders the exercise of the right conferred by Article 119 (now Article 141) of the Treaty excessively difficult.' Obtaining an answer to that question would I believe require a further reference to the ECJ. The making of such a reference was not an issue that appears to have been raised in Preston No 3 and it was not raised before me. That being so, if there were to be such a reference it would in my view be more appropriate for it to be made by a higher court or tribunal."

Relevant Law

[12] In Preston v Wolverhampton Healthcare NHS Trust [1998] ICR 227 the House of Lords found that under domestic law, the six month time limit provided for in s.2(4) of the Equal Pay Act 1970 ran from the end of each contract under which an employee was employed, rather than from the end of any employment which consisted of a succession of different contracts. Given the possibility that in some circumstances, that application of the domestic law might be incompatible with the law of the European Union, they made a reference to the European Court of Justice ("ECJ"). The question referred was in the following terms:
"'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 benefits 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 119 of the EC 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 119?'"
The ECJ found that there was some incompatibility. They said:
"'67. As pointed out in para 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 * 1067 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 the 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 EC 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 contract 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 that 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.'"Paragraph 70 appears to be of particular significance for the purposes of the present case. It shows that the ECJ were aware of and bore in mind that there could be cases in which there was an employment relationship between employee and employer postdating a series of fixed term contracts which could not properly be regarded as part of the stable employment relationship comprising those contracts. What the ECJ then specifies is that in that event, time runs from the end of the stable employment relationship not from the termination of the new employment relationship. Further, it is evident that periodicity is used in the sense of referring to something which is regularly recurrent and the court has spelt out that if that comes to an end then the stable relationship evidenced by a succession of short term contracts is to be regarded as also having ended. It does not matter that a new employment relationship is entered into subsequently between the same parties. Time will still run from the end of the "stable relationship" contracts that did have periodicity.[13] The case returned to their Lordships for further consideration and is reported as Preston No 2 [2001] ICR 217 . At p. 229, Lord Slynn of Hadley said:
"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."
I turn next to Preston (No 3) [2004] ICR 993 in which the Employment Appeal Tribunal, Chairman, Judge McMullen QC considered various matters arising from the determinations of both the ECJ and the House of Lords in those cases. At paragraph 112, he deals with a submission regarding the question of whether a stable employment relationship persisted in certain circumstances where a series of short term contracts was followed by a permanent contract. He said:
"'112. The chairman accepted (reasons paras 251(1)-(2)…) that a stable employment relationship may in certain circumstances arise following a succession of regular short-term contracts even where there is a sequence of intermittent short-term contracts. It was contended that the graduation of an employee from a succession of short-term contracts to a permanent contract reflects an increase in the stability of the employment relationship, not its cessation. Far from being incompatible with the continuation of a stable employment relationship, entering into a permanent contract typically cements the stability of the relationship. It is contended that there should be no artificial restriction on the types of successive contracts leading to a stable relationship. On behalf of the respondents it is contended that the expression of this relationship by the Court of Justice provides a complete answer. All three test cases raise the same issue.
*1069 '113. In ordinary language any permanent job can be described as a stable employment relationship. But in the context in which it is coined by the Court of Justice, it is there to rescue employees who do not have a permanent job. The rescue operation is limited to cases satisfying the conditions defined by the Court of Justice and adopted by the House of Lords. …'115. It is therefore necessary to consider the "features that characterise a stable employment relationship" ( [2000] ICR 961 , 1001 , para 70) and these can be broken down as follows.(1) A succession of short-term contracts.(2) Concluded at regular intervals.(3) Relating to the same employment.(4) To which the same pension scheme applies. As to (1), this devolves into two parts. The subject matter must be short-term contacts. The House of Lords in its order for reference and in its consideration of the Court of Justice's judgment when referred back to it had in mind as "short-term" contracts which are termly, or for the academic or sessional year. It follows that those contracts and anything for a shorter period are "short-term". There must be a "succession" or a "sequence" (para 70). I interpret this to mean three or more, for the existence of two such contracts is not usually described as a sequence or a succession of such contracts. It would ordinarily be described as the repetition of a contract.
'116. As to (2), the intervals which must be regular, this is described as "periodicity" which of course implies regularity. The periods are regular because they are clearly predictable and can be calculated precisely; and they are also regular where the intervals between work, and the length of the spells of work, are not to be predicted with accuracy; but nevertheless it is possible to say that the teacher, for example, is frequently, or even customarily, called upon whenever a need arises. This arises, by definition in the field of supply teaching, several times a term and thus may be described as regularly; but the precise dates cannot be calculated or predicted and so the work may accurately be described as intermittent.
'117. As to (3), "same employment", no guidance is given. As to (4), the same pension scheme, it seems that the adoption of the expression "over-arching" is encompassed within the same scheme.
'118. In order to succeed in bringing the test cases within the above framework, Mr Cavanagh submits that the chairman was wrong to find that the stable employment relationship ceases when the terms of the contract, or the work done, alter radically; that is, when a succession of short-term contracts is superseded by a permanent contract (reasons, para 251(3)(e)). But in the context of the analysis of the Court of Justice's judgment as applied by the House of Lords, the submission fails because *1070 feature (1) is missing. The succession of short-term contracts ceases, or is interrupted, when a new permanent contract is negotiated. It is not apt to describe a succession of short-term contracts and a permanent contract as a succession of short-term contracts. The succession is broken, and the nature of the contract changes from short-term to permanent. The submission also fails because there is no periodicity about the contracts. There is no interval, let alone a regular interval, between the contracts since on the footing of the test case each relationship is regulated by a single permanent contract. Thirdly, the cases may also founder under feature (3) as not being in "the same employment". I will examine this matter in more detail below. I would further agree with the chairman that, in respect of Mrs Cockrill, her claim would fail because the pattern of her working was too spasmodic and could not be characterised as meeting each of the features set out above. She would fail principally on feature (2): the lack of periodicity of the employments.'"In the case of Jeffery & ors v Secretary of State for Education & ors [2006] ICR 1062 , the judgment in which was handed down on 17 March 2006, Elias J (President) expressly agreed with Judge McMullen's analysis. At paragraphs 17 and 18, he said:
"17 … Although, in layman's terms, it may understandably be said that entry into a permanent job does not destroy a stable employment relationship, that concept in the context of this jurisprudence is a very much more precise one. As

Judge McMullen QC pointed out, at para 118:

'It is not apt to describe a succession of short-term contracts and a permanent contract as a succession of short-term contracts.'
18 I entirely agree with his analysis on this point. In my judgment, it cannot be said that there is a continuation of the stable employment relationship into a new permanent contract. To put it in my own words, the concept of a stable employment relationship has the effect of requiring a series of intermittent contracts or temporary contracts to be treated as if they were a single contract terminating at the conclusion of the last of those sequential contacts. But this only modifies the basic principle that time runs from the end of each contract in the very precise circumstances identified by the Court of Justice It does not permit an employee to treat a succession of contracts not falling within those criteria as amounting to a single stable employment relationship. If that were right, it would mean that, in practice, *1071 in almost all cases employees would be able to bring claims within six months of the termination of the employment relationship with a particular employer, however many separate contracts there may have been during the course of those relationships, and whether they were short-term, long term or, indeed, whatever form they took. That would involve a fundamental change in the law which is plainly not the effect of the decision of the Court of Justice."Later in his judgment, under reference to the factual findings in that particular case, he comments, at paragraph 23:
"… it seems to me he was fully entitled to say that, where one moves from a temporary relationship under a particular contract to a permanent relationship which may carry on indefinitely, that is a fundamental change in the nature of the relationship between the parties and their obligations such as to amount to a new contract as a matter of law. If that is right then of course the new contract was a permanent contract and the stable employment relationship thereby came to an end once that relationship was entered into. That meant that the chairman found that each of these claims was therefore brought outside the time limit."
In short, in common with the chairman in the present case, the chairman in Jeffery had found that the employees there had entered into quite new and fundamentally different contracts when they took up the permanent contracts that were offered to them subsequent to the succession of short term ones under which they had previously been employed. I note also that, like the claimant in the present case, the employees in Jeffery were educational employees whose contracts changed from sessional or termly ones to permanent ones in circumstances where the day-to-day elements of their work did not change in any material respect after the start of the permanent contracts.

The Grounds of Appeal

[14] The grounds contained in the Notice of Appeal were in the following terms:
"(a) The circumstances of the appellant's history of employment with the respondents were materially different to those dealt with by the Preston No 3 case and the ratio of that case, as regards those, such as the appellant, whose series of short term fixed term contracts was succeeded by a non-fixed term contract, ought not to have been applied to the appellant. The tribunal ought to have distinguished that case. (b) The decision of the EAT in the Preston No 3 case was wrong in the way that it applied the decision of the ECJ in Preston & ors v Wolverhampton Healthcare NHS Trust [2000] IRLR 506 as regards those, such as the appellant, whose series of short term fixed contracts was succeeded by a non-fixed term contract. A correct understanding and application of that decision to such persons including the appellant, should have been that time does not start to run until the end of the succeeding non-fixed term contract of employment. Therefore the tribunal erred in applying that case to the appellant's."
By order dated 8 June 2006, the appeal was set down for a full hearing. The hearing was fixed for 16 January 2007. By fax to this tribunal dated 8 January 2007, the Equal Opportunities Commission advised:
"At an emergency meeting of the legal committee of the Equal Opportunities Commission which took place on Friday 5 January, commissioners considered a supplementary opinion from counsel regarding this case. In light of that opinion, which highlighted a change in the judicial landscape since commissioners first considered Mrs Wilkes request for funding for the appeal, commissioners decided that the Commission could no longer justify the expense of representation at the appeal hearing itself.
It is with regret therefore that I must advise that I have no option but to withdraw from acting, which means that the appellant will no longer be represented by counsel at the forthcoming hearing.

Mrs Wilkes is aware of the position and has decided to represent herself."

It was in these circumstances that the appellant represented herself at the appeal hearing. She did so having had but short notice of the withdrawal of the Commission's support and that lack of notice was clearly and understandably stressful for her. It is unfortunate that the Commission did not review their decision to support her appeal earlier. I can only infer that the change in the judicial landscape referred to is the decision in Jeffery and, as I have indicated, that decision was handed down some nine months prior to the Commission's decision to withdraw support for her appeal. It is reasonable to have expected the Commission to review their decision to support her appeal long before they did so.[15] In the event, the claimant had clearly sought to prepare carefully what she had to say and to try to understand the relevant authorities. It cannot have been easy and it does her credit that she appeared with a prepared written statement and also sought to respond with care to the submissions that were made against her.[16] In her written statement, the claimant refers to the factual history of her employment. Some of the features referred to are the subject of findings by the tribunal. Some are not. She did not, however, seek to challenge the tribunal's findings of fact nor did she seek to challenge the conclusion in law that, on those findings, there was not a global contract encompassing both her short term contracts and the permanent contract which began in 1990. She refers, as had Mr O'Carroll at the tribunal, to her work remaining the same before and after the conclusion of the permanent contract. She states that she cannot understand how the ECJ decision "can possibly be interpreted other than one contract superseding another, thereby making no difference" in her employment situation. She states that the decision of the ECJ did not make a ruling on what happens if there is a change from a temporary to permanent contract and requests that a referral to the ECJ be considered. That request was repeated by her in her oral submissions.[17] The claimant also advanced an argument which was to the effect that she had an ongoing claim from the time that she first raised her grievances about her pension position with the first respondents in 1990. On exploring her contention it became evident that the thrust of her argument was that the ongoing debate between her and the first respondents as to whether or not she was entitled to join the LGSS, a debate which was conducted in correspondence and over the telephone from some time early in 1990, was the equivalent of her having timeously lodged her claim.[18] The claimant also took objection to any suggestion that she had been employed as a casual worker. Further, it seemed to be part of her argument that the first respondents had a duty to advise her of the need to lodge her claim with the tribunal at the earlier stage, namely within six months of the end of the short term contracts.

Submissions for the First Respondents on Appeal

[19] For the first respondents, Mr McNeill relied on the fact that it had been accepted by them that a stable employment relationship had existed between 1968 and 1990. However, a key characteristic of that relationship was its periodicity and that had been lost when the new permanent contract was entered into. It was plain from a review of the authorities to which I have referred, a review which Mr McNeill carefully carried out, that the circumstances of the claimant's change of employment in 1990 were covered by the principles analysed there. Preston (No 3) had not been wrongly decided. It followed on clearly from the determination of the ECJ. Further, he noted that there was no attempt in the grounds of appeal to attack the tribunal's finding that there was no global contract. Without that, the claimant was in real difficulty in seeking to advance the grounds which were set out, both of which seemed, in effect, to depend on a view being taken of the facts which involved the conclusion being that there was in fact a global or umbrella contract.[20] With regard to the concerns expressed by the chairman, in particular, those set out at paragraph 51, Mr McNeill submitted that there was no need for any such concern. The chairman was wrong to apprehend that time would have started to run on 27 June 1990 because at that point, the stable employment relationship was still in existence. Time would not have started to run until it ceased.

Submissions for the Second Respondents on Appeal

[21] For the second respondents, Mr Napier adopted, in the main, Mr McNeill's submissions. He too emphasized that the claimant did not seek to disturb the tribunal's finding that she was not employed under a global contract. In Preston (No 3) , Judge McMullen had analysed the features that characterise a stable employment relationship in the sense that the term had been used by the ECJ and had rightly identified that, according to that court, such a relationship ends if periodicity ceases. He did so having rejected an argument that the change from short term contracts to a permanent contract marked a reinforcement of a stable relationship. It would be wrong to take the words "stable employment relationship" out of the context of the ECJ decision. That was the approach in Preston (No 3) and it was the correct approach.Reliance was also placed by Mr Napier on the case of Jeffery which was, he observed, directly in point.[22] Thus, there were two recent decisions of the Employment Appeal Tribunal which supported the proposition that the replacement of a series of short term or temporary contracts by a new permanent contract, albeit with the same employer and for the same duties, constitutes the ending of any "stable employment relationship" arising from the short term contracts in the sense that that expression was used by the ECJ.[23] Regarding the second ground of appeal, Mr Napier observed that the argument appeared to be that the ECJ ruling in Preston was to the effect that where a series of short term fixed contracts was superseded by one which is not of fixed term then time did not start to run for an equal pay claim until the end of the succeeding non fixed term contract. But the House of Lords had given its view as to what was to be taken from the ECJ ruling in that regard and this court was bound to follow it. Further, it was evident from a reading of the ECJ decision that it had said that it was in order for a member state to specify that claims had to be made within six months of the end of the contract to which the claim related and allowed for an exception only in narrowly defined circumstances, namely where there were "successive short-term contracts of the kind referred to in the third question." That was the limit of the "lifeline" provided by the ECJ, to help those employees who, otherwise would have been faced with the difficult task of bringing a claim within six months of the end of each of the short term contracts which together formed a succession. A succession of short term contracts could not include a new permanent contract that replaces them and no analysis of the ECJ's approach in Preston supported such a radical interpretation.[24] Regarding the matter about which the chairman had expressed anxiety that was, Mr Napier said, for another day. It did not matter in the present case whether the six months was counted from the date that the last short term contract expired (27 June 1990) or the date that the claimant became aware that the stable employment relationship of short term contracts was at an end (when the permanent contract was entered into). In either event, this claimant's claim was well out of time, not having been lodged until November 1992. Even if the point required to be determined in another case, no reference was merited in the present case.

Discussion

[25] I am readily satisfied that the decision of the ECJ in the Preston case that was referred to it was correctly analysed by Mr Napier. Firstly, it determined that community law did not preclude a national procedural rule such as that contained in s.2(4) of the Equal Pay Act which requires that a claim in respect of pension rights must be brought within six months of the end of the employment to which the claim relates, assuming that the same period applies to claims based on domestic law. Then, as regards circumstances where an employee has been employed on a series of short term contracts, if that series of contracts can be said to amount to a stable employment relationship, the six month limitation period should run from whatever date that series of contracts is interrupted. The interruption which the ECJ had in mind was, judging by what is said by them at paragraph 70 of the judgment to which I have already referred, where the contractual relationship ceases to have "one or more of the features that characterise a stable employment relationship of that kind" and they specify that that could be either because the contractual periodicity is broken or because there is a new contract that does not relate to the same employment.[26] It is, accordingly, plain that the ECJ were aware of the possibility that employer and employee may remain in an employment relationship beyond a time when their relationship has been governed by a series of short term contracts from which a stable employment relationship can be inferred, had regard to that possibility and determined whether or not the start of the limitation period would be postponed in that event. It is clear that the ECJ considered that it would not. The fact that employer and employee remain in an employment relationship ought not to postpone the start of the limitation period in the circumstances envisaged by them. They thus make clear that the exception to the general rule that the operation of the six month limitation period is not contrary to community law is a limited one.[27] I am in full agreement with the approach adopted by the Elias J (President) in Jeffery which involves also agreeing with Judge McMullen QC's analysis in Preston (No 3) . I would refer to paragraph 17 in Jeffery :
"… it seems to me that the decision of Judge McMullen QC in Preston No 3 [2004] ICR 993 is decisive of the point. Although in layman's terms, it may understandably be said that entry into a permanent job does not destroy a stable employment relationship, that concept in the context of this jurisprudence is a very much more precise one. As Judge McMullen QC pointed out, at para 118: 'It is not apt to describe a succession of short-term contracts and a permanent contract as a succession of short-term contracts.'"
At paragraph 18, Elias J added his own commentary, with which I am in entire agreement and to which I have nothing further to add:
"….to put it in my own words, the concept of a stable employment relationship has the effect of requiring a series of intermittent or temporary contracts to be treated as if they were a single contract terminating at the conclusion of the last of those sequential contracts. But this only modifies the basic principle that time runs from the end of each contract in the very precise circumstances identified by the Court of Justice. It does not permit an employee to treat a succession of contracts not falling within those criteria as amounting to a single stable relationship. If that were right it would mean that, in practice, in almost all cases, employees would be able to bring claims within six months of the termination of the employment relationship with a particular employer, however many separate contracts there may have been during the course of those relationships, and whether they were short-term, long-term or, indeed, whatever form they took. That would involve a fundamental change in the law which is plainly not the effect of the decision of the Court of Justice."
It follows from my view as to the analysis and effect of the above decisions that I am not persuaded by the second ground of appeal and that I do not consider that it would be appropriate to refer this case to the ECJ in that respect, which is what the claimant seemed to be suggesting.[28] What does this analysis of the relevant law mean for the claimant's case? I begin by noting that there was an important factual finding of the chairman that not only did no global contract incorporating both the short term and permanent contract exist between the claimant and the first respondents but that what happened in August 1990 was that the claimant commenced employment under a new contract which was quite separate from the earlier series of short term temporary contracts. That was a finding which was open to him on the evidence and which was not challenged. It is plain that the periodicity that was a central feature of the short term contracts disappeared in August 1990. It is also plain that there was a fundamental change in the contractual relationship in respect that the first respondents undertook, as from August 1990, an ongoing permanent obligation towards the claimant. In that respect, it could also be said that the new contract was not the same employment as before, a feature of which had been, according to the findings of the tribunal that the claimant accepted that if, prior to any particular term, the first respondents had not offered her any work, there was nothing that she could have done about it.[29] The claimant's case appears, accordingly, to be exactly the sort of set of circumstances that was envisaged by the ECJ as not being covered by the exception afforded to contracts within a stable employment relationship. It is one where, bearing in mind the very precise nature of the concept of the stable employment relationship that was resorted to by the ECJ, the stable employment relationship evidenced by the series of short term contracts came to an end and a new employment relationship began thereafter. It does not matter, for the purposes of the present case, whether the former is regarded as having ended on 27 June 1990, on 27 July 1990, when the claimant was offered a permanent post or on 13 August 1990, the date from which the permanent post took effect. Her claim was lodged very late whichever date is used as the starting point.[30] Regarding the concern voiced by the chairman, given that it is academic in the circumstances of this case, it does not seem to me that it would be appropriate to refer this case for that matter to be clarified. In any event, I am of the view that the answer to the question of whether time starts to run on the date that the last contract expires or whether it might start to run on a later date, namely that on which it can be said that the stable relationship came to an end, can be found in the existing judgment of the ECJ. It seems clear that the concept of a stable employment relationship is to the effect that parties remain in a relationship throughout the time that contains the periods during which they are contracted to each other. The periods between contracts, whilst not involving ongoing contractual obligation, must be periods during which there is reasonable expectation on the part of the employee that he will, after a reasonably predictable break be offered a further short term contract of the same type and for a similar period as before. It seems that it can only be the existence of that reasonable expectation that enables the inference to be drawn that there is a stable employment relationship. If that is right then, since the limitation period is, according to the ECJ, to run from the date of disturbance of the stable employment relationship, as discussed by them at paragraph 70, the correct starting point would be not the date that the last contract comes to an end but the date when the stable employment relationship ceases which may be a later date if, for instance, the employee has retained a reasonable expectation of matters continuing as before, beyond then. For that reason also it seems to me that it would be inappropriate to regard this case as suitable for the reference proposed by the chairman.[31] Turning briefly to the other matters raised by the claimant, whilst it is unfortunate that she seems to have been diverted from taking the action that was ultimately taken in November 1992 by the fact that she had ongoing discussions with the first respondents, it does not have any relevant bearing. The six month rule set out in s.2(4) of the Equal Pay Act is an absolute one and no discretion to relax it is provided for. Her feeling that she should have been advised by the first respondents about the time bar is, similarly, irrelevant. It does not affect the fact that the claim was lodged very late in the day.

Disposal

[32] In these circumstances, I will pronounce an order dismissing the appeal.