Employment law

By Martin Edwards, Mace & Jones, Liverpool

Part-time workers and occupational pensionsPreston and others v Wolverhampton Healthcare NHS Trust and others (2000) IRLR 506This decision of the European Court of Justice attracted an enormous amount of media attention.

Perhaps inevitably, the instant reaction was superficial in its analysis of the decision in favour of a claim by part-timers who were excluded from membership of occupational pension schemes.

The European Court held that s2(5) Equal Pay Act 1970 as amended, which imposes a two-year time limit on retrospective membership of a scheme, contravenes the European law 'principle of effectiveness'.

This is because it prevents the entire record of service completed by the workers in question from being taken into account when calculating pension benefits.

The right to be admitted to an occupational scheme is not time-limited by virtue of the well-known Barber case.

But the case must now go back to the House of Lords and in any event, the decision does not amount to quite the bonanza for part-timers that some have suggested.

The European Court pointed out that the fact that a worker can claim retroactively to join an occupational pension scheme does not allow him to avoid paying the contributions relating to the period of membership concerned.

Furthermore, European law does not preclude a national procedural rule, as in s2(4) Equal Pay Act, which requires that a claim for membership must be brought within six months of the end of the employment to which the claim relates - provided that the limitation period is not less favourable for actions based on European law than for those based on domestic law.

The setting of reasonable limitation periods satisfies the 'principle of effectiveness' in as much as it constitutes an application of the fundamental principle of legal certainty.

So many potential claimants are likely to find themselves out of time.

Illegal contracts and sex discriminationHall v Woolston Hall Leisure Ltd, The Times, 31 May 2000The Court of Appeal held that an employee was entitled to seek compensation for sex discrimination even though the performance of her employment contract was tainted with illegality.

An appeal against the decision to the contrary of the EAT, reported at (1998) ICR 651, was allowed.

Peter Gibson L.J.

considered that it could not properly be said that the claim was based on the contract.

The illegality consisted only of the employer's mode of paying wages without lawful tax deductions, in which the employee had acquiesced.

That acquiescence was in no way causally linked with the sex discrimination claim.

Public policy did not require her to be deprived of the ability to enforce her statutory claim and that conclusion was supported by the Equal Treatment Directive.

Age discriminationTaylor v Secretary of State for Scotland (2000) IRLR 507The House of Lords has brought this saga to an end, upholding the decision of the court of Session reported at (1999) IRLR 363.

The decision to select Mr Taylor for compulsory retirement because he was over the minimum retirement age was not in breach of his contract, even though his contract included an equal opportunities policy prohibiting discrimination on the ground of age.

In the absence of domestic legislation, campaigners against age discrimination will no doubt hope for the adoption of the proposed European framework directive on discrimination which bars discrimination on age.

TUPEWhitewater Leisure Management Ltd v Barnes and others (2000) IRLR 456The EAT upheld a tribunal's conclusion that there was no transfer of an undertaking within TUPE when there was a change in the contractor managing a leisure centre, but no transfer of assets and no transfer of the majority of the workforce either in number or in skills.

The EAT offered guidance in determining whether there has been a TUPE transfer.

It will normally be best for a tribunal to deal first with whether there was a relevant and sufficiently identifiable economic entity and then to proceed to ask whether there was a relevant transfer of any such entity.

On the first issue, one may ask whether there is a 'stable and discrete economic entity' or whether the entity is 'sufficiently structured and autonomous'.

The expression 'distinct cost centre' may be helpful.

In determining whether there was a transfer, the best and clearest guidelines are to be found in Spijkers (1986) ECR 1119.

There can be a transfer even if there are no significant tangible or intangible assets.

But if assets are transferred from the predecessor to a successor sub-contractor, that is a very likely indicator of a relevant transfer.

In looking at an alleged transfer of a labour-intensive undertaking, the question is whether the staff is 'substantially the same'.

Although, in accordance with ECM (Vehicle Delivery) Service v Cox (1999) IRLR 559, a tribunal is entitled to look at the reason why employees were not appointed by the transferee, ECM did not say that if there was a finding that there was a deliberate decision by a possible transferee not to take on any of the possible transferor's staff in order that TUPE should not apply, then all the employees are deemed to have been transferred.

This last point must be right: see, for example, Brookes v Borough Care Services and CLS Care Services (1998) IRLR 636.

Tribunal procedureChief Constable of the West Yorkshire Police v A (2000) IRLR 465A tribunal made a restricted reporting order preventing the identification of a transsexual who was bringing a sex discrimination claim.

On the evidence, disclosure of her identity would have deterred her from pursuing the complaint.

However, there was no allegation of 'sexual misconduct' or commission of a 'sexual offence' so as to fall within the statutory rules which govern restrictions on reporting.

Her claim succeeded.

The question arose whether the restricted reporting order should apply in respect of an appeal against the tribunal's decision on liability.

The president of the EAT ruled that the EAT has an inherent jurisdiction under Article 6 of the Equal Treatment Directive to make a restricted reporting order, even though such an order could not be made under UK legislation.

The Directive requires an effective remedy to be conferred on those able to rely on it, such as this applicant, who could rely on the Directive against the police as an emanation of the State.

Rule 23 of the EAT Rules was defective or inadequate in that it is a procedural rule which, on the facts of the present case, left the exercise of rights conferred by community law virtually impossible or excessively difficult.

Thus the EAT was entitled to exercise its jurisdiction under the Directive to grant an order protecting the applicant, in perpetual terms, from identification as the individual concerned in the appeal.

Significantly, the President said: 'It has to be recognised that such matters as freedom of expression, freedom of the press and the right to a public hearing have, in some circumstances...

counter-vailing factors operating, such as freedom from discrimination and respect for privacy and...

the need for access to an effective remedy and the due administration of justice'.

The nature of the order to be made would be limited so as to do no more than necessary to enable the applicant fairly to assert her rights in the EAT.

Reporting would be restricted only so far as it might jeopardise the secrecy obtaining in relation to her identity.

The editor of the IRLR is surely right to characterise this as 'a bold decision'.

Intriguingly, the editor also points out that the absence of legal aid in employment tribunals may be another example of circumstances which could be regarded as making it 'excessively difficult' to exercise rights under community law or human rights law.

This is a topic which seems ripe for development.