"14. These cases are part of the Preston v Wolverhampton Healthcare NHS Trust No 3[2004] ICR 993 (EAT) litigation, and are being handled throughout the UK according to that ruling. The first Originating Applications were lodged in 1994, and continue to be received, albeit in very small numbers. Most notices of appearance from the main employers were stayed. In the vast majority, these old cases are covered by the earlier Employment Tribunal Regulations, and the components of a notice of appearance then were less rigorous than those for a response now in the 2004 Regulations. Employers have been directed to submit schedules, listing those cases which they claim must fail, following the various Preston judgments. We at the EAT will recognise this, and also give effect to the proportionate decision in case management, taken in the employment tribunals, not to call on all Respondents to submit a response unless now sought. 15. As I understand it, there are three stages to the process in public sector cases (the problem may also arise in large private sector cases as well but that depends on whether the nominated chairman in the Region responsible for managing cases follows the public sector model): 15.1 The Respondent submits a schedule to the tribunal office listing the claims which are said to fail and giving brief but sufficient reasons why the claims should be struck out. In the great majority of non-NHS cases, this has been done and the schedules processed. There remains a small number of schedules to process and an even smaller number yet to be received. For most public sector Respondents, this involves at least tens and more frequently hundreds of cases. For the NHS, which is being handled centrally by the NHS Pensions Agency, it is thought the number is well over 8,000. The NHS schedules have been received and are being processed. 15.2 A letter is sent inviting the Claimant to show cause ie give reasons why the claim should not be struck out, for it appears to fall outside the rulings in Preston . 15.3 The Claimant replies and if the reply is deemed inadequate the claim is ultimately struck out by a Chairman without a hearing. In our experience at the EAT, it is usually a Claimant who has replied to the show cause letter who appeals against the strike out judgment, but that does not necessarily follow. The Claimant's reply to the show cause letter should be copied to the Respondent whose further views will be sought. Its reply in letter form can be taken as an amendment to the response in the schedule. 15.4 This process applies only to the old claims. A Respondent to claims which have been received after it has filed a schedule should be directed to enter a response in the conventional way under the 2004 Regulations, and so the problem will not arise in the newer cases."
"No claim in respect of the operation of an equal treatment rule in respect of an occupational pension scheme shall be referred to an [Employment Tribunal] ... unless the woman has been employed in a description or category of employment to which the scheme relates within the six months preceding the date of the reference"
"No determination may be made by an employment tribunal in the following proceedings— (a) on a complaint under subsection (1) above, … unless the proceedings are instituted on or before the qualifying date (determined in accordance with section 2ZA below)."
"For the part of the claim that succeeds, a declaration by consent will be issued unless objections are received from either party or if the dates remain in dispute."
"34(3) Subject to paragraph (4), decisions may be reviewed on the following grounds only— (a) the decision was wrongly made as a result of an administrative error; (b) a party did not receive notice of the proceedings leading to the decision; (c) the decision was made in the absence of a party; (d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or (d) the interests of justice require such a review."
"The Respondent concedes that the claim succeeds in respect of the period between1 January 1977 and5 April 1988 and consents to the tribunal making a declaration that the Claimant is entitled to be admitted to membership of the scheme for that period."
"We have, unfortunately, been made aware of an error in the analysis of entitlement in this part time worker pension claim, in that, Mrs Rance's claim would appear to be out of time, not being lodged within six months of termination of the relevant contract of employment. Mrs Rance's claim for access to the Scheme spans the period1 January 1977 to31 March 1989 , during which time she was employed by the National Health Service. She left the National Health Service in 1989 to take up employment with a partnership of General Practitioners. Mrs Rance's Originating Application was not lodged until June 2000, well after six months of termination of her employment with the National Health Service. In the circumstances, we would respectfully request that the Tribunal exercise its discretion under rule 35(1) to extend the time limit for carrying out a review of the Judgment under rule 34(3) (a) and (e). We apologise both for the error in the analysis of the claim, and for our lateness in seeking this Review, this being due to the sheer volume of part time worker pension cases with which this Office is concerned."
"1 The claimant, along with many thousands of other female employees presented a complaint to the Tribunal on29 June 2000 maintaining that she had been unlawfully excluded from access to the respondent's Pension Scheme for the period when she was a part-time worker. 2 That complaint remained stayed along with the other part-time worker pension cases awaiting the result of test cases, which were dealt with by the Employment Tribunal and the subject of an appeal to the Employment Appeal Tribunal in the case of Preston -v- Wolverhampton Health Care (No 3[2004] IRLR 96 . The Judgment on the Appeal was given in December 2003 and when it became clear that the majority of the findings in that case were not to be the subject of further appeal to the Court of Appeal, the Tribunal sent to the parties an information bulletin No 9 requiring the NHS Pension Agency by11 June 2004 to provide a schedule of cases which they submitted should fail either in whole or in part. 3 Because of the substantial amount of claims, the NHS Pension Agency was unable to comply with that timetable, and it was not until the spring of 2005 that individual response to the claimants was made available to be notified to the claimants. By that time well over a year had expired since the law on claims such as this had been clarified, clarification which had for a variety of reasons extended over a period of some ten years. … 9 …The respondents maintain that the Application for Review was late because of the sheer volume of cases. 10 It is well understood that the NHS Pension Agency has been struggling with a huge number of cases. That however was reflected in the lengthy period of time allowed to the NHS in preparing its response. The respondents therefore had ample time prior to the submission of their response to consider all potential defences and in many cases they have taken the time limit point. 11 Whereas dealing with the response to many thousands of claims may well have required a generous approach to extensions of time, in my judgment the same does not apply in relation to an actual judgment served at the conclusion to a case. The number of actual judgments being received on any one day by the NHS Pension Agency is not known but common sense would suggest that it would be a very small number compared with the totality of the caseload being handled. I am therefore not persuaded that it is appropriate to extend the time limit in this case. 12 I also have regard to the need for finality in litigation. In this case the claim has taken five years for a Judgment to be given. During that time the claimant died. The respondents made a considered concession and now seek very belatedly to withdraw it. These do not, in my judgment, amount in the round to sufficient reasons for it to be just and equitable to extend the time limit for seeking a review and accordingly, the Application to Review is refused upon a preliminary consideration under rule 35."
"…do not appear to dispute… that the Claimant is entitled to succeed in respect of the period from27 October 1980 to31 August 1987 "
"1…. We believe that such an extension is just and equitable in the circumstances, as the grounds of the review, if allowed, go to the merits of the entire claim period. If our clients are correct in their assessment of this claim, then the claimant has suffered no detriment, whereas our clients will, if denied the opportunity to be heard on review, be unable to protect the Scheme against a considerable financial detriment which will need to [be] met largely at public expense. 2. For a review of the Judgment entered6 January 2006 under rule 34(3) (a) and (e) – we note in particular that rule 34(3) (a) allows for review on the basis that a decision has been wrongly made as a result of an administrative error which is clearly applicable here, as the process leading to the Judgment has been almost entirely administrative in nature. Our clients contend that, for reasons similar to those set out at paragraph 1 above, the interests of justice require a review and for both parties to be heard again on the merits of the claim, the Tribunal making such findings of fact as are supported by the evidence before entering Judgment."
"In support of our application, we would ask that the Tribunal consider sympathetically the circumstances in which this review is being pursued, and which have, in large part, contributed to the delay in seeking it. The circumstances involve employment tribunal litigation, in the guise of the part time worker pension claims exercise, of a scale hitherto unknown, and which has placed considerable demands on all parties to these actions leading to certain unavoidable delays, such as that in the present case. This Office has a small team of approximately two full time equivalent lawyers involved in part time worker pension litigation, whose job is to scrutinise the case load in order to identify any important points of legal principle with which the NHS Business Services Authority might need assistance. It is not possible for this Office to deal closely with all aspects of a claim's lifecycle, nor, given that the health sector has by far the largest number of such claims, with some 11 000 registered cases, would it be in the interests of the tax payer for it to do so. And so, on occasion, it can be difficult for us to meet the formal timescales set by the Rules of Procedure. With respect, we would suggest that these difficulties have been recognised, and are reflected in the form of the nationally applicable directions for the processing of these claims in the health sector which, as you know, dispense with certain of the formality associated with other tribunal claims. All parties, including the tribunal itself, benefit from this dispensation, which helps accelerate the processing of cases, many of which are now over ten years old. We believe that it would be inequitable, against this background, for a tribunal to refuse to exercise the discretions open to it under the Rules of Procedure when an occasion for it to do so, as in the instant case, presents itself."
"The application by the second respondent to review and revoke the judgment is refused. The judgment is confirmed save as varied below. By consent of the claimant and first respondent paragraph 2 of the judgment is varied so that within 28 days of the date of this judgment the second respondent will write to the pension fund trustees (with a copy to the claimant) requiring the trustees to state the terms upon which they will admit the claimant to membership of the scheme."
"Under the redeployment procedure you are entitled to a four week trial period. This will run from 15 th June 1992 to 12 th July 1992. This will give you an opportunity to settle in to this post and to receive any appropriate training you will need. If at any point before the end of your trial period you feel uneasy or unhappy about any aspect of this post, please discuss this immediately with either Mrs Richards or myself… May I take this opportunity of wishing you happiness in your new post and look forward to meeting you."
"10. The principal difficulty that I face on the respondent's application is that despite pointing out that I would require some evidence, no evidence has been put before me, other than the copy of the contract of employment for the Senior 2 physiotherapist role. In particular, nothing has been said as to how the error arose or how the error was discovered. I do not know why it came to light in June 2006 nor what the respondent was doing between November 2005 and June 2006. 11. Other than the production of a contract of employment, neither of the respondents has put forward any cogent evidence on the merits of their suggestion that there was a change in the claimant's contract of employment. On the face of it the change from a basic grade physiotherapist to a senior 2 physiotherapist at the same hospital does not look like a change of contract, but a promotionary position. The onus in a Review Application is upon the respondent. It has been recognised by the appeal courts that issues around whether a change in job amounts to a new contract of employment are complicated. The fact that a new form of contract of employment has been issued is only one factor in establishing whether there was truly a change in the contract of employment. It would not normally be suggested that promotional changes would be such that the time limit starts running from those changes. The onus in a Review Application is upon the party applying for the Review and the information put forward by the respondents is wholly inadequate to persuade me that, in this case, there is a real issue that the change from basic grade physiotherapist to senior 2 physiotherapist would have started the time limit for an equal pay claim running and I therefore, reject the Review Application on its merits. 12. I would also reject the Review Application on the second ground that the respondent consented to the Judgment and in that situation it is not appropriate to agree to a review. I say no more on that point because I am aware that there are numerous cases on this point which are subject to appeal at the Employment Appeal Tribunal."
"4. By a letter of 12 July, the parties were notified that a hearing of the Review Application would be held which would deal with the application to review out of time and, if that was granted, to consider the Review Application itself. The respondent's attention was specifically drawn toCPR Rule 3.9 and I said that I would require evidence from the respondents on both issues. 5. The Review Hearing was initially listed for10 August 2006 , but was postponed at the request of the first respondent, as it would be difficult to attend on that day because of annual leave commitments. The case was then relisted for12 September 2006 to enable the first respondent to attend. The first respondent made no further submissions and put forward no evidence and despite asking for the adjournment decided not to attend the Hearing."
"According to the decisions of the Industrial Court, the time limit is so strict that it goes to the jurisdiction of the tribunal to hear the complaint. By that I mean that, if the complaint is presented to the tribunal just one day late, the tribunal has no jurisdiction to consider it. Even if the employer is ready to waive it and says to the tribunal,: 'I do not want to take advantage of this man. I will not take any point that he is a day late'; nevertheless the tribunal cannot hear the case. It has no power to extend the time … The complaint must actually reach the tribunal itself within the four weeks. It is not sufficient for the man to put it into the post-box. He must see that it is 'presented' and delivered into the hands of the clerks of the tribunal themselves within the four weeks. If it arrives a minute after midnight on the last day, the clerks must throw it out."
"We have had a discussion about 'consent orders.' It should be clearly understood by the profession that, when an order is expressed to be made 'by consent' it is ambiguous. There are two meanings to the words 'by consent.' That was observed by Lord Greene M.R. in Chandless–Chandless v Nicholson [1942] 2 K.B. 321, 324. One meaning is this: the words 'by consent' may evidence a real contract between the parties. In such a case the court will only interfere with such an order on the same grounds as it would with any other contract. The other meaning is this: the words 'by consent' may mean 'the parties hereto not objecting.' In such a case there is no real contract between the parties. The order can be altered or varied by the court in the same circumstances as any other order that is made by the court without the consent of the parties. In every case it is necessary to discover which meaning is used. Does the order evidence a real contract between the parties? Or does it only evidence an order made without objection?"
"20 These authorities show that although the Employment Appeal Tribunal has a discretion to allow a new point of law to be raised (or a conceded point to be reopened) the discretion should be exercised only in exceptional circumstances, especially if the result would be to open up fresh issues of fact which (because the point was not in issue) were not sufficiently investigated before the industrial tribunal. In Kumchyk, the Employment Appeal Tribunal (presided over by Arnold J) expressed the clear view that lack of skill or experience on the part of the appellant or his advocate would not be a sufficient reason. In Newcastle, the Employment Appeal Tribunal (presided over by Talbot J) said that it was wrong in principle to allow new points to be raised, or conceded points to be reopened, if further factual matters would have to be investigated. In Hellyer, this court (in a judgment of the court delivered by Slade LJ which fully reviews the authorities) was inclined to the view that the test in the Employment Appeal Tribunal should not be more stringent than it is when a comparable point arises on an ordinary appeal to the Court of Appeal. In particular, it was inclined to the view of Widgery LJ in Wilson v Liverpool Corporation[1971] 1 WLR 302 , 307, that is to follow: 'The well-known rule of practice that if a point is not taken in the court of trial, it cannot be taken in the appeal court unless that court is in possession of all the material necessary to enable it to dispose of the matter fairly, without injustice to the other party, and without recourse to a further hearing below.' 21 In this case the Employment Appeal Tribunal recognised that the consequence of allowing Mr Jones's appeal would be a new hearing with fresh evidence (so far as that can be an appropriate term for evidence given in 1998 of events of five years ago): [1997] ICR at pp.398-9. It was therefore a case in which the Employment Appeal Tribunal would have had to have exceptionally compelling reasons for taking such an unusual course. It is necessary to consider the course of the proceedings to see whether there were such compelling reasons."
"The Employment Appeal Tribunal possesses a discretion, which must be exercised in accordance with established principles, to allow a new point to be raised before it for the first time. It is a general principle of the law that it is a party's duty to bring forward the whole of his case at the proper time. The reasoning of Robert Walker LJ in Jones v Governing Body of Burdett Coutts School[1998] IRLR 521 is, with great deference, consonant with this. A new point ought only to be permitted to be raised in exceptional circumstances, as Robert Walker LJ held at p.44B. If the new issue goes to the jurisdiction of the Employment Appeal Tribunal below, that may be an exceptional circumstance, but only, in my judgment, if the issue raised is a discrete one of pure or hard edged law requiring no or no further factual inquiry There is a public interest, beyond the interests of individual parties, that statutory tribunals exercise the whole of but exceed none of the jurisdiction which Parliament has given them upon such facts as are proved or admitted before them, I do not consider that this case falls within that category, even if the facts required to be ascertained in order to determine the date of the termination of the applicant's employment were now capable of agreement. On the facts agreed before the industrial tribunal, that tribunal was correct to hold that it lacked jurisdiction. It was therefore necessary to show exceptional circumstances if the Employment Appeal Tribunal was properly to decide to allow the new point to be taken. The Employment Appeal Tribunal identified no such exceptional circumstances. In my judgment, there are none."
"5. The Chairman had considered the history because unchallenged evidence was given by the Claimant by way of a witness statement. In that, she described her duties and thus it seems to me the task the Chairman was one of assessment, not only of contractual documents but also of the circumstances in which the Claimant worked. That is a perfectly proper approach because in Preston the issue was to determine whether or not there had been a radical change, as I said: '115 It is therefore necessary to consider the 'features that characterise a stable employment relationship' (ECJ judgment paragraph 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 contracts. The House of Lords in its Order for Reference and in its consideration of the ECJ judgment when referred back to it has 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' (ECJ judgment paragraph 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 permanent contract (Reasons paragraph 251(3)(e). But in the context of the analysis of the ECJ's judgment as applied by the House of Lords, the submission fails because 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 cases 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. 119 4. Similarity of terms and/or work The chairman held (Reasons paragraph 233, 235) that: '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.' It was contended that these words represent a gloss impermissibly put upon the words 'stable employment relationship'. Or alternatively that they 'imposed too strict a test of similarity'. In my view, that is an unfair criticism for one of the features of a stable employment relationship is 'same employment' which can be construed in different ways. It must be borne in mind that the report for the hearing in the ECJ described the stable employment relationship cases as follows (at p.510): '… 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' (emphasis added). The applicants contended (at p. 520): 'To require the applicants who are employed under a series of identical, or substantially similar , contracts to bring applications within six months of the end of each such contract – some of which may be contracts for only one day's work – would plainly impose an unrealistic requirement which would make the enforcement of rights excessively difficult or impossible in practice and thus infringe the principle of effectiveness.' It is for that reason that 'same employment' was given the characteristic cited above: it was not a gloss but the exemplification of the issues placed before the European Court of Justice.' 6. That was a reflection on the holding by the Chairman in Preston , Mr J K Macmillan, who had summarised the position as follows: '3. A stable employment relationship ceases and time for commencing proceedings therefore begins to run when: a. A party indicates that further contracts will either not be offered or not accepted if offered; b. A party acts inconsistently with the continuation of the relationship; c. a further contract is not offered when the periodicity of the preceding cycle of contracts indicates that it should have been offered; d. a party ceases to intend to treat an intermittent relationship as stable; e. the terms of the contract or the work to be done under it alters radically: eg a succession of short-term contracts is superseded by a permanent contract.' 7. Thus, a stable employment relationship ceases where the terms of the new contract or (and I emphasis the word ' or' ) the work done under it radically differs, and thus the Tribunal Chairman's approach was bound to be one of looking at all of the circumstances. 13. It must be recalled that the approach to looking at whether a radically different contract has been entered into involves either an examination of the language of the contract or of the work done and, as I have indicated in this case, the correct analysis must have included both aspects. The example given in the Preston case was a succession of short-term contracts superseded by a permanent contract. It is claimed that the new contract was not a permanent contract. It says it is temporary and, if assistance can be drawn from the laterFixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 , it can be seen that a person who is a fixed-term employee is not a permanent employee. That is for the purposes of those Regulations, but they are illustrative of the correct distinction. 15. It is also correct to consider the intention of the parties because, as the Mr Macmillan in his Preston judgment indicated, intention is important – see paragraph 90 in Preston No. 3 . If the intention of the parties is analysed in this case, it is clear that they intended to be engaged with each other for the performance of similar contracts which went substantially unchanged as to the work done by the Claimant."