MRS W MCMASTER & OTHERS v PERTH & KINROSS COUNCIL [2008] UKEAT 0026_08_2810

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0026_08_2810Case No Appeal No. UKEATS/0026/08Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
MRS W MCMASTER & OTHERSAPPELLANTPERTH & KINROSS COUNCILRESPONDENT
Before
Lady SmithDate 28 October 2008
[2]APPEARANCES For the Appellant MR J MUIR (Solicitor) Messrs Muir Myles Laverty Legal Services Meadow Place Building Bell Street Dundee DD1 1EJ For the Respondent MR J MACMILLAN (Solicitor) Messrs MacRoberts Solicitors 152 Bath Street Glasgow G2 4TB SUMMARY EQUAL PAY ACT: Equal value JURISDICTIONAL POINTS: Claim in time and effective date of termination Equal pay claims: local authority home helps. Time bar. Claims in respect of inequality of pay between 1998 and February 2005 presented in December 2007. In February 2005, home helps took up posts of social care officers. Tribunal satisfied that these were new contracts and six month period to lodge claims ran from that date. Appeal refused. THE HONOURABLE LADY SMITH Introduction 1. These are appeals against a judgment of an Employment Tribunal sitting at Dundee, Employment Judge Miss FCC Carmichael, finding that the appellants' (who were claimants before the Tribunal) equal pay claims were time barred and should be dismissed. The judgment was registered on 21 January 2008. We will continue to refer to the parties as claimants and respondents.[3]Before the Tribunal and before us, the claimants were represented by Mr J Muir, solicitor, and the respondents by Mr J MacMillan, solicitor. Background[4]The respondents are a local authority. Their responsibilities accordingly include home care support of people who are ill, frail, disabled or isolated in the community where they have been assessed as needing it.[5]The claimants were employed as home helps on various dates as from September 1998/9. Their grade was 'MW' (manual worker) 5. They assert that they were paid at a lower rate than male manual workers up until February 2005. Home help duties were mainly those of assisting with bathing, washing, dressing and doing housework, making light meals and shopping.[6]By 2004 legislative changes and a bed blocking problem in hospitals gave rise to plans for major changes to be effected in the home care service. Thus, from 2005 it was recognised as being, as the Tribunal put it "a service in its own right"(para. 4). That involved the creation of a new post of social care officer. Persons in that post would undertake personal care, specialist tasks and domestic care. The home help post continued in existence but was renamed "support worker".[7]At paragraph 5, the Tribunal lists the differences in the posts of social care officer and support worker as being:
"( The home support workers remained at Grade MW5 on a single point salary scale of £11,448, while the social care officers were upgraded to the APT&C grade with an incremental salary scale starting at £14,535 up to £17,340. ( The home support workers were required to commit to training, while the social care officers were required to achieve a certificate in homecare and progress to a SVQ level 2 or similar. ( The home support workers' tasks remained domestic care and some personal care tasks of washing bathing, dressing and supervision for those with less specialised needs. The social care workers also carried out personal care tasks for those whose needs were greater or more specialised. ( The home support workers worked mornings for the same number of hours daily between Monday and Friday, up to 28 hours per week. The social care officers worked a rota system of either 20 or 30 hours per week over 7 days, morning – afternoons or afternoons – evenings. ( If home support workers worked weekends they were entitled to a weekend enhancement, which the social care officers did not receive."
[8]Further, the social care officers carried out certain additional personal care tasks not performed by home support workers. Those included a list set out by the Tribunal at paragraph 7:
"( Total care and assistance with dressing / undressing ( Washing and bathing ( Toileting and continence care ( Catheter and colostomy care ( Moving and handling using specialist equipment ( Dental care ( Assistance with shaving ( Optical care ( Sanitary care ( Prompting with medication ( Prosthesis care ( Assistance with feeding ( PEG feeding (with appropriate supervision and training)."
[9]The post of social care officer was advertised in September 2004. All the home helps went to a meeting with their line manager who explained to them that they had a choice: they could remains as home helps (in which case they would be relabelled "home support worker") or they could apply for one of the new posts. The claimants all applied to become social care officers since the wage was significantly higher and the basic hours were increased to 30 hours per week. They were interviewed for the posts towards the end of 2004. They were all successful and all appointed with a starting date of 1 February 2005. The letters offering them the posts were actually dated 22 February 2005. They enclosed a statement of particulars which included:
"You may be required to remain in residence on occasion or work at night for which you will receive the sleeping – in duty allowance and night working allowance."
[10]The claimants were not prepared to agree to that provision and so did not return signed copies of the statements of particulars. Two of them called their local office in Pitlochry with a view to speaking to the manager about it but she was not available. They left a message. No further attempt was made by them to discuss the matter with the respondents. They were agreeable to the statement of particulars in all other respects and worked in accordance with its terms.[11]Some of the claimants' colleagues remained in home support worker posts.[12]The respondents implemented a single status agreement in respect of the remuneration of their employees as from August 2007 and the claimants were issued with a fresh statement of particulars at that stage, a statement which they all signed. The Issue[13]The only issue for the Tribunal was whether or not the claimants were employed in the employment in respect of which they sought to advance their equal pay claim, within the six month period preceding the presentation of their claims (see: s.2ZA(3) of the Equal Pay Act 1970 ). The Tribunal's Judgment[14]In the light of the issue in the case, at paragraph 23 the Tribunal posed for itself the following question:
"What was the employment which the claimants were employed in during the period of 6 months up to 8 December 2006, the date on which they presented their claims?"
[15]They considered but rejected an argument that the fact that the claimants had not signed and returned the statements of particulars showed that no new contracts had come into existence when they took up their new posts and they were in fact still working under their old contracts. They concluded that the evidence did not support it. The statements of particulars were not contractual documents, they did not require to be signed, contracts of employment did not require to be in writing and in all the circumstances it was clear that the claimants had acquiesced in the new conditions by working under them.[16]The Tribunal considered the cases of Preston & Others v Wolverhampton Health Care NHS Trust & Others [2004] IRLR 96 , National Power plc v Young [2001] IRLR 32 , Capper Pass Limited v Allan [1980] IRLR 236, and HQ Service Children's Education (MOD) v Davitt [1999] ICR 978 and concluded, at paragraph 28:
"When considering the meaning of 'employed in the employment' it is not the actual job on which the focus falls, but the contract of employment, as explained in Young. The fact … that the work the claimants did as home helps and as social care officers may have changed little or been 80% the same was nothing to the point. The contract of employment under which they worked had changed. Therefore, the "qualifying date" under section 2ZA(3) was the date falling 6 months after the last day on which they were employed as home helps."
Relevant Law[17]In relation to proceedings such as those instituted by these claimants section 2(4) of the 1970 Act provides:
"No determination may be made by an employment tribunal … unless the proceedings are instituted on or before the qualifying date (determined in accordance with section 2ZA below)."
[18]Section 2ZA provides for the proceedings falling into one of four possible categories and it was ultimately accepted by Mr Muir, for the claimants, in the present case that their claims were "standard cases". In respect of standard cases, section 2ZA(3) provides:
"… the qualifying date is the date falling six months after the last day on which the woman was employed in the employment."
[19]"Employed in the employment" refers to the contract of employment under which the employee worked, not to the work itself (see: National Power plc v Young [2001] IRLR 32 at paragraph 18). Thus, in the HQ Service Children's Education (MOD) case, it did not matter that the claimant was not actually working during any of the six month period prior to the presentation of her claim; her contract of employment had not come to an end until a date within that period and so her claim was presented in time.[20]Further, it is a matter of focussing on whether and, if so, when the contract which contains the implied equality clause founded on by the claimant in an equal pay claim terminated, as commented by Elias P in Cumbria County Council v Dow & Others unreported UKEAT/0148/06 at paragraph 52. That will depend on the facts and circumstances of the individual case. It may require a Tribunal to consider whether or not a new contract of employment, subsequent to the contract founded on by the claimant, has been entered into, a matter which has to be judged objectively on the whole facts and circumstances. In so doing, a Tribunal should bear in mind that contracts of employment do not require to be constituted in writing and that a statement of employment particulars, whilst persuasive as to its terms, is not of itself conclusive as to them. The conduct of parties will also be relevant and, when looked at objectively, may be such as to entitle a tribunal to conclude that they agreed on a new contract. The Appeal Claimants' Submissions[21]Mr Muir invited us to uphold the appeal. The Tribunal had erred in concluding that there was a new contract in 2005. The usual contractual rules of offer and acceptance applied. That meant that if one party to a contract offered to vary it, the other required to accept the offer for it to have effect. The statement of employment particulars that was sent to the claimants in February 2005 made no mention of termination of their existing contracts. Acceptance of the offer had been specifically declined by the claimants. Consensus in idem had never been reached. There were similarities as between the original contracts and the 2005 statement of particulars. The work was 80 per cent the same, as found by the Tribunal. As far as the claimants were concerned, they were, in 2005, simply achieving the equal pay that they should have received before then. Otherwise there was no difference between the contracts.[22]Mr Muir stressed, at more than one point in his submissions, that this was a case of the employers unilaterally issuing terms and conditions and their doing so did not create a new contract. The claimants had refused to sign it. He did not accept that the findings that they had a choice in the matter and had applied for and been interviewed for the posts was of significance. His approach seemed to be that it was all really a matter of the claimants' old jobs continuing.[23]Looking at the Tribunal's judgment, Mr Muir submitted that the Tribunal had gone no further than concluding that the contracts of employment changed in February 2005 and that was not enough. It was not the same as finding that there were new contracts entered into at that time. At a later point, however, he appeared to accept that the Tribunal had concluded that the claimants 1998/9 contracts had been terminated. However, they were wrong. The only new contracts entered into were those which commenced in 2007, in implementation of the single status agreement and they postdated the presentation of the present claims. Further, the Tribunal should have asked whether, if a contract was concluded in 2005, it involved material alteration or change; it did not.[24]Mr Muir relied heavily on the Cumbria County Council case. In particular, he submitted that the claims of Ms Storey and Ms Dow, comprised within it, were on all fours with the circumstances of the present case.[25]In response to a submission by Mr MacMillan, Mr Muir advised that the claimants forms ET1 had been completed by a partner of his who was now deceased. It was completed in something of a rush as could be seen from the fact that it was handwritten and not typed. He had been instructed by the claimants when they had been let down by their former solicitor. Respondents' Submissions[26]For the respondents, Mr MacMillan submitted that the Tribunal had not erred. This was not a matter of all the respondents' home helps having metamorphosed into social care officers. The claimants knew of the contractual changes in advance, they chose to apply for the posts, were interviewed for them and appointed. The Tribunal found as fact that there was no refusal of a new contract of employment at all. On the contrary, they found that the claimants accepted all the terms apart from that relating to overnight duties and worked in terms of them. This was not a perversity appeal; it was not suggested that that was not a finding in fact that the Tribunal were not entitled to make. It was instructive to note the terms in which the claims had been framed in the forms ET1 since they showed that the claimants had, at that time, accepted that they had commenced new contracts in February 2005. At paragraphs 6.2, the forms stated:
"I was employed as a Home Help, until February 2005 when I was given a new contract as a Social Care Officer, paid on salary rather than at an hourly rate."

Decision

[27]We are readily satisfied that this appeal is without merit. The claimants' claim is in respect of allegedly unequal pay when they worked as home helps between 1998/9 and February 2005. The Tribunal identified the issue for them correctly as being whether or not the claimants were employed in "the employment" at or within 6 months before the date of presentation of their claims. The forms ET1 have been date stamped by the Tribunal with the date 8 December 2007. The relevant six month period thus began on 9 June 2007. The claimants were working in their posts of Social Care Officers as at that date and thereafter. Thus the Tribunal required to examine whether that was the same "employment" as they were working in during the period of claim, namely 1998/9 to February 2005. That is what it did.[28]As we have explained, the issue required the Tribunal to look not at the nature of the work that was carried out but at the question of whether or not the claimants continued working under the same contract notwithstanding the transition to the post of Social Care Officers. Did that transition arise in the context of the termination of their old home help contracts or not?[29]To answer that question the Tribunal required to examine the relevant facts and then, looking at them objectively, consider whether or not the home help contracts came to an end and new ones began.[30]The Tribunal found a number of facts which were highly relevant and provided clear support for the respondents' case that new contracts were entered into: the new posts were created for a genuine reason relating to legislative changes and the need to meet a bed blocking problem. The post of Social Care Officer involved tasks and qualification requirements that were not a part of the home help job. The new posts were advertised. The home helps were all told that they had a choice as to whether to carry on as home helps or apply for one of the new posts. The claimants decided to do so for the reasons explained. They went through a written application and interview process. They were successful and were appointed. One of them already had the required SVQ certificate, some of them were in the process of acquiring it and some had not yet begun to do so. As regards the latter there appears to be no question of their suggesting that they did not accept that they needed to do so. Some of the claimants' home help colleagues carried on as home helps, relabelled as home support workers and did not become Social Care Officers. The statement of terms and conditions ran to over five pages and contained thirteen clauses. The claimants were unhappy about one part of one those clauses, the provision regarding overnight working. Although the letter sending the statement of terms and conditions to them told them to contact Stephanie Gannon of the respondents' staffing section if they wished to discuss it, they did not do so. They left a message at their local office and took no further action. Otherwise, on the Tribunal's findings, they did not refuse to work under the terms set out. Indeed, the Tribunal found in terms, at paragraph 10, that apart from their objection to night time duties, the claimants accepted the terms of the statement of terms and conditions and worked in terms of them.[31]As against the above there is only the fact that the claimants did not sign and return the statement. That was heavily relied on by Mr Muir as showing that the fundamental contractual rules of offer and acceptance had not been satisfied and there was thus no new contract. In those circumstances he appeared to be saying that it should have been concluded that what happened was that, in common with the employers in the Cumbria County Council cases, the claimants were faced with the respondents seeking to unliterally impose new terms and conditions on them and that would not do.[32]The problem with Mr Muir's approach is that the facts found by the Tribunal do not support it nor does the law. Firstly, the law does not require that a contract of employment be constituted in writing and a statement of terms and conditions is not conclusive evidence of the terms of such a contract. Thus, the failure of an employee to sign a statement of terms and conditions does not require a Tribunal to conclude that no contract of employment was entered into. The Tribunal requires to examine the whole circumstances including what happened and how parties conducted themselves. Secondly, this was not a case of unilateral imposition of terms. The new posts were genuine posts and involved greater responsibilities with a different pay and hours structure; this was not a sham arrangement. The claimants chose to apply for them; they did not need to do so. They were appointed to those posts and were content to work in them in all respects apart from putting the respondents on notice that if they were asked to provide overnight cover, they were not prepared to do so. Their old posts remained in existence and some of their colleagues carried on in them. We would go as far as saying that it would it have been perverse of the Tribunal to do other than, in these circumstances, conclude that a new contract was entered into in February 2005 and that the claims were, accordingly, time barred.[33]On the facts found, it is perhaps not at all surprising that the claimants' case was encapsulated in the terms that were set out by their solicitor in the ET1. Disposal[34]We will, accordingly, pronounce an order refusing the appeal.