Butterworth v Greater Manchester Police and Crime Comr’s Office

A statutory successor’s liability for discrimination depends on the terms and context of the statute effecting the reorganisation. A transfer of “liabilities” does not necessarily transfer statutory duties or obligations, particularly where the legislation distinguishes duties from liabilities and separately transfers employment contracts.

Section 108 of the Equality Act 2010 requires a relationship which previously existed between the claimant and the alleged discriminator. It does not extend post-employment protection to a body which was never the claimant’s employer merely because it replaced or succeeded the former employer. European equality law did not require a wider construction.

The claimant had been employed by the Greater Manchester Police Authority but left before the statutory creation of the Police and Crime Commissioner’s Office for Greater Manchester. She sought to bring claims of discrimination, harassment and victimisation against the new body and the Commissioner, despite never having been employed by either.

An Employment Tribunal held that it had no jurisdiction. On appeal, the claimant relied on Schedule 15 to the Police Reform and Social Responsibility Act 2011, section 108 of the Equality Act 2010, section 47B of the Employment Rights Act 1996, and European equality law. The central issues were whether statutory liabilities and post-employment protections transferred to the replacement body, and whether section 108 covered a relationship that had never existed between the parties.

1. Appeal dismissed. The Employment Tribunal had correctly concluded that the claims against the Police and Crime Commissioner’s Office and the Commissioner could not proceed.
2. Schedule 15, paragraph 5 of the Police Reform and Social Responsibility Act 2011 transferred property, rights and liabilities, but “liability” retained its ordinary contextual meaning. It did not include a general statutory duty or obligation not to discriminate. Paragraph 23 widened the category of liabilities capable of transfer; it did not change the nature of what constituted a liability.
3. Paragraph 6 made a deliberate distinction between duties and liabilities. It transferred employment contracts, and rights, powers, duties and liabilities connected with those contracts, only for staff employed immediately before the relevant commencement time. The claimant was not then employed by the Police Authority, so her former employment relationship and related duties did not transfer.
4. Section 108 of the Equality Act 2010 applies where post-termination conduct arises out of and is closely connected with a relationship which used to exist “between” the parties. Those words must be given effect. The section may protect an ex-employee against an ex-employer, but it does not create a relationship between a former employee and a body which never employed her.
5. The authorities concerning post-employment victimisation and effective protection, including Rowstock Ltd v Jessemey, Coote v Granada Hospitality Ltd, Rhys-Harper v Relaxion Group plc, Woodward v Abbey National plc (No. 1) and BP plc v Elstone, did not establish that a person with no employment relationship with the claimant could be sued. The decision in Halawi v World Duty Free Group UK Ltd illustrated the statutory limits of discrimination legislation.
6. Directive 2006/54 did not require section 108 to be read as if the words “between them” were absent. The proposed reference was refused.

• Employment Appeal Tribunal: Appeal from the Employment Tribunal dismissed. The application for a reference was refused, with any further application concerning section 108 left to the Court of Appeal.
• Employment Tribunal: Employment Judge Ross held that the Tribunal had no jurisdiction to consider the claimant’s claims; Reasons delivered on 1 April 2015.