Prest v Mouchel Business Services Ltd

For the purpose of calculating the arrears date under sections 2(5) and 2ZB(3) of the Equal Pay Act 1970, an amended equal pay claim is treated according to its substance. Replacing the named comparator does not create a new claim where the replacement comparator performs the same work. The identity of the individual comparator is not itself decisive. A new claim arises only where the work relied on is different from the work relied on originally. Accordingly, the six-year period runs from the presentation of the original claim where the amendment concerns the same work, but from the amendment date where it introduces materially different work.

The claimants, formerly employed by Middlesbrough Borough Council and transferred to Mouchel Business Services Ltd, brought equal pay claims concerning bonus payments. Their original claims referred to classes of manual-work comparators and certain named individuals. They later sought to rely on Michael Welsh and Andrew Blenkinsop instead.

The Employment Tribunal permitted the amendment but held that the arrears date was six years before the amendment application, rather than six years before the original ET1. The claimants appealed. A second issue concerning the effect of [2010] ICR 793 was stayed pending the Supreme Court’s decision. The issue determined was whether the substituted comparators constituted new claims for the purposes of section 2ZB(3).

1. Appeal allowed on the arrears-date issue. The applicable date under section 2ZB(3) depends on when the substantive claim attracting liability for arrears was first brought before the Employment Tribunal. The date of the original proceedings is not decisive where an amendment introduces a claim that is new in substance.
2. The relevant comparison is between the work relied on in the original claim and the work relied on after amendment. The identity of the individual comparator is not, by itself, material. Where several men perform identical work, substituting one for another does not alter the nature of the claim.
3. Accordingly, the addition of a comparator performing the same work does not constitute a substantially new claim. The addition of a comparator performing different work does constitute a new claim, so that the arrears date for that comparison runs from the amendment application.
4. This approach was consistent with the reasoning in Bainbridge, Potter (no. 2) and Brett. Claims under different statutory heads remain distinct, but that does not mean that every claim under the same head is necessarily the same.
5. The substitution of Mr Welsh for Mr Grayson concerned the same road/street-sweeper work and therefore introduced no new claim. The position concerning Mr Blenkinsop was provisionally treated likewise, subject to Mouchel’s liberty to apply within 14 days if he was not a refuse driver.
6. The arrears date for the claims based on Mr Welsh and, subject to that qualification, Mr Blenkinsop was declared to be six years before presentation of the ET1. The appeal on the separate TUPE-related issue was stayed.

• Employment Tribunal: Employment Judge Hargrove held that the arrears date ran from the application to amend and followed Alemo-Herron.
• Employment Appeal Tribunal: The appeal on the arrears-date issue was allowed. The separate issue was stayed pending the Supreme Court’s decision.