Barnard v Hampshire Fire and Rescue

A stable working relationship for equal-pay limitation purposes is not established merely by uninterrupted employment with the same employer. The tribunal must assess, broadly and practically, the character of the work and employment relationship. Changes in contractual terms may be relevant, but a detailed contractual analysis is inappropriate.

A change of role, including promotion, may end the relationship only where the changes are sufficiently fundamental, radical or significant. The tribunal must identify the test it applies, make adequate findings about the changes in work and responsibilities, and explain why they meet that standard. A conclusion based on brief and unexplained findings may be perverse and inadequate in reasons.

The Claimant brought equal-pay complaints against her employer after progressing through roles as a Business Support Officer, Fire Safety Officer, Office Manager and Community Safety Delivery Manager.

The Employment Tribunal held that her stable working relationship ended on the moves from Business Support Officer to Fire Safety Officer and from Fire Safety Officer to Office Manager. It therefore dismissed the complaints concerning the first two roles as out of time. It held that the relationship continued on the move from Office Manager to Community Safety Delivery Manager.

The Claimant appealed. The central issue was how a tribunal should decide whether an uninterrupted employment relationship remains a stable working relationship when the employee changes role and gains pay or responsibilities.

1. Appeal allowed. The Employment Tribunal’s findings that the stable working relationship ended on the Claimant’s first two changes of role were set aside. The issue was remitted for rehearing before a differently constituted tribunal.

2. The statutory expression requires a broad, practical and non-technical assessment of the character or nature of the work and of the employment relationship. It does not equate to continuous employment, and an unbroken succession of contracts is not by itself determinative. Equally, the fact that a contract is fixed-term or permanent is not compelling without other relevant factors.

3. The authorities permitted a stable relationship to end following a sufficiently radical, fundamental or significant change in the work or employment relationship. However, they did not supply a mechanically applicable test. The tribunal had to identify the changes relied on and explain why, individually or collectively, they reached the required level.

4. The Tribunal adopted “significant” change as its test but gave only brief findings concerning pay, responsibilities and enforcement work in the move from Business Support Officer to Fire Safety Officer. It did not explain why those changes were significant or fundamental. Its conclusion was perverse on the limited facts found and, alternatively, its reasons were inadequate under Meek.

5. The same defect affected the conclusion that the move from Fire Safety Officer to Office Manager ended the relationship. The reference to wider responsibilities and management duties did not contain a sufficient analysis of the changes in work or an explanation of why they met the stated test.

6. The appellate tribunal could not substitute its own decision because the issue was evaluative and not binary. A fresh tribunal must redetermine it. Lay members were recommended as potentially helpful, subject to the Regional Employment Judge’s decision on constitution.

• Employment Appeal Tribunal — allowed the Claimant’s appeal and remitted the stable-working-relationship issue for rehearing: [2018] UKEAT 00179_18_1210.
• Employment Tribunal, Southampton — held that the stable working relationship ended on the first two role changes, dismissing related complaints as out of time, but continued on the final role change.