Employment

Discrimination, sex equal pay claims by part-time employees to membership of pension schemes time bars in domestic law incompatible with community lawPreston and others...Discrimination, sex equal pay claims by part-time employees to membership of pension schemes time bars in domestic law incompatible with community lawPreston and others v Wolverhampton Healthcare NHS Trust and others (No 2); Fletcher and others v Midland Bank plc (conjoined appeals) (No 2): HL (Lord Slynn of Hadley, Lord Goff of Chieveley, Lord Nolan, Lord Hope of Craighead and Lord Clyde): 8 February 2001The applicants, the majority of whom were women, were or had been part-time employees.

In test cases, they claimed to have been unlawfully excluded from occupational pension schemes where membership depended on a minimum number of hours worked, consequently discriminating against women contrary to article119 of the EC Treaty.

They claimed access to membership and asserted that the Equal Pay Act 1970 had earlier precluded their claims.

The industrial tribunal held that their claims were out of time under section 2(4) of the Act unless brought during employment or within six months of termination and that section 2(5) prevented entitlement to more than two years backdated membership of the schemes as from the date of commencement of proceedings.

The tribunal was affirmed by the Employment Appeal Tribunal [1996] IRLR 484 and the Court of Appeal [1997] ICR 899.

On their further appeals, the House of Lords [1998] 1 WLR 280 referred questions to the European Court of Justice.

On receipt of the courts rulings (Case C-78/98) [2000] ICR 961 the appeal was restored for further hearing.David Pannick QC and John Cavanagh, instructed by Reynolds Porter Chamberlain, for the applicants in the first appeal.

David Pannick QC and Jane McNeill, instructed by Lawford & Co, for the applicants in the second appeal.

Nicholas Paines QC and Raymond Hill, instructed by the Treasury Solicitor, for the Secretaries of State for Health, Education and Employment and the Environment, respondents in the first appeal.

Christopher Jeans QC and Jason Coppel, instructed by Eversheds, for Southern Electricity plc, Electricity Pension Trustee Ltd and South Wales Electricity Co plc, respondents in the first appeal, and, instructed by Stephenson Harwood, for HSBC Bank plc, formerly Midland Bank plc, respondents in the second appeal.

Cherie Booth QC and Clive Lewis, instructed by Sharpe Pritchard, for Birmingham City Council, Manchester City Council, Lancashire County Council, Stockport Metropolitan Borough Council, Wolverhampton Metropolitan Borough Council and North East Lincolnshire Council, respondents in the first appeal.Held, varying the order of the Court of Appeal, that domestic procedural conditions must not make the enforcement of Community law rights impossible or excessively difficult in practice nor be less favourable than those applicable to similar domestic claims; that the two-year rules in section 2(5) of the 1970 Act and reg.12(1)(b) of the Occupational Pension Schemes (Equal Access to Membership) Regulations 1976 made any action by individuals in reliance on Community law impossible in practice and were therefore precluded by community law; that the six-month limit in section 2(4) did not make exercise of the applicants rights under article 119 impossible or excessively difficult and was not, in all the circumstances, less favourable than the limitation in a comparable claim in contract and did not, therefore, contravene the community law principle of equivalence; and that the six months ran, in the case of contracts of service concluded at regular intervals in respect of the same employment within a stable employment relationship, from the end of the last contract within that relationship.

(WLR)