Dass v The College of Haringey Enfield & North East London (Equal Pay Act : Article 141/European law)

A stable employment relationship under Equal Pay Act 1970 section 2ZA has an autonomous meaning. It is not determined by statutory continuity of employment, temporary cessation of work, mutual obligations, or the existence of an umbrella contract.

The material inquiry is whether there was a succession of employment contracts concluded at regular intervals, whether or not gaps separated them and irrespective of their length. The relationship ends when the established periodicity is broken, or when another necessary feature is absent. An Employment Tribunal must apply that test rather than tests derived from the Employment Rights Act 1996.

The claimant, a former full-time and subsequently part-time lecturer, brought an equal pay claim seeking retrospective admission to the Teachers’ Superannuation Scheme. The claim was initially determined to the extent of the period ending on 3 July 1995.

On a later pre-hearing review, the Employment Judge decided that there had been no stable employment relationship between 3 July 1995 and 4 January 1996. The Judge relied on the absence of a full-time or overriding contract, the absence of guaranteed work, and the conclusion that there had been no temporary cessation of work or continuity of employment.

The claimant appealed. The central issue was whether the Employment Judge had applied the correct legal test for a stable employment relationship under Equal Pay Act 1970 section 2ZA.

1. Appeal allowed. The Employment Judge’s decision that no stable employment relationship existed between July 1995 and January 1996 was set aside.

2. Section 2ZA of the Equal Pay Act 1970, reflecting Preston, permits a stable employment relationship to subsist during intervals when no contract is in force. The concept is autonomous and governs the point at which the limitation period begins.

3. The correct inquiry is whether there was a succession of employment contracts concluded at regular intervals. Periodicity is necessary. Contracts may be separated by gaps or may be consecutive, and their duration is not determinative. The relationship ends when the established sequence is interrupted through the absence of a necessary feature, including a break in periodicity.

4. The Employment Judge erred by treating the absence of an overriding or umbrella contract, guaranteed work, and mutual obligations as material. Those matters concern the existence or continuity of a contract of employment, not a stable employment relationship. The Judge also wrongly relied on the absence of a temporary cessation of work and continuity under the Employment Rights Act 1996.

5. The EAT could not itself determine the factual issue. It was not inevitable on the existing findings whether the necessary periodic succession existed. The matter was remitted to a different Employment Judge to determine the section 2ZA issue from 1995 to 2003 and, if necessary, the proposed amendment or fresh claim.

• Employment Appeal Tribunal: Appeal allowed. The Employment Judge’s decision of 20 September 2011 was set aside and the matter remitted to a different Employment Judge.
• Employment Tribunal: At a pre-hearing review, Employment Judge Sigsworth held that there was no stable employment relationship between 3 July 1995 and 4 January 1996.
• Employment Tribunal: By a judgment sent on 1 April 2011, with reasons dated 24 May 2011, the claimant was declared entitled to retrospective access to the pension scheme from 20 September 1993 to 3 July 1995.