Donnelly v NHS Greater Glasgow & Clyde & Ors

For an equal pay claim, the six-month limitation period runs from the end of the employment to which the claim relates. Employment with a transferor and employment with a transferee are separate employments where there has been a change of employer. This remains so where contractual terms continue by statutory transfer machinery and the employee’s work changes little.

The identity of the person who must meet the transferred liability does not determine the relevant employment. The rule applies to claims for breaches by the transferor before transfer, whether the transfer is effected by TUPE or comparable statutory arrangements.

A new effectiveness argument will not ordinarily be entertained on appeal where it requires uninvestigated factual issues.

The appellants were formerly employed by NHS Trusts. On 1 April 2004 the Trusts were dissolved and their staff, contracts, rights and liabilities transferred to NHS Greater Glasgow & Clyde under Staff Transfer Orders made under the National Health Service (Scotland) Act 1978. The transfer was not a TUPE transfer.

The Employment Tribunal held that claims based on unequal pay before the dissolution were subject to the six-month limit in section 2(4) of the Equal Pay Act 1970, running from the date of transfer. The appellants contended that their employment had not changed in a legally material way. Ms Donnelly additionally sought to raise a new argument that the limitation rule infringed the European principle of effectiveness because of inadequate consultation and information.

1. Appeals dismissed. The Employment Tribunal was entitled, and absent an error of law bound, to hold that the claims based on alleged breaches by the former NHS Trusts before 1 April 2004 were time-barred if not presented within six months of that date.

2. The relevant inquiry under sections 2(4) and 2ZA(3) of the Equal Pay Act 1970 is: what employment does the claim concern; whether that employment ended; and, if so, when. The statutory term “employment” is not determined by whether the contract of employment was terminated. The decisive event is the cessation of the employment to which the alleged equality-clause breach relates.

3. The appellants’ employment with the Trusts ended when the Trusts were dissolved and a new employment began with the respondent Board. The Staff Transfer Orders preserved terms and transferred liabilities, but did not mean that the former and new employments were one employment. The respondents consequently bore two distinct possible obligations: compensation for the Trusts’ earlier breaches and performance of their own equality-clause obligations after transfer.

4. The reasoning in Preston No 3 and Gutridge was applicable. It was not confined to pension claims or to TUPE transfers. The lack of substantial practical change in the appellants’ work did not provide a material distinction.

5. The effectiveness argument was a new point on appeal. It depended on factual matters not investigated below, including what information or advice would have been supplied and what Ms Donnelly would have done with it. It was therefore inappropriate to entertain it. In any event, the argument treated the length of a limitation period separately from its start date, contrary to the reasoning in Preston No 1. No reference under article 267 was warranted.

• Employment Appeal Tribunal: Appeals from the Employment Tribunal sitting at Glasgow were dismissed.
• Employment Tribunal: At a pre-hearing review, the Tribunal held that dissolution of the NHS Trust employers triggered the six-month time limit under section 2(4) of the Equal Pay Act 1970 for claims concerning the former Trust employment.