Barnard v Hampshire Fire and Rescue Authority (No 2)

A stable working relationship under sections 129 and 130 of the Equality Act 2010 is assessed broadly and practically. The inquiry concerns the continuing relationship between employer and worker, viewed in the context of the character of the work. A change in job content, pay or grade is not determinative.

An agreed internal promotion which forms a natural and incremental progression within a department may positively indicate that the relationship remains stable. A tribunal errs if it treats the difference between the old and new jobs as the deciding factor without giving proper weight to the continuity and stability of the employment relationship.

The claimant brought an equality of terms claim after leaving the respondent's employment in June 2017. She had progressed through internal roles, including promotion from Fire Safety Officer to temporary Office Manager in June 2014, initially under her existing contract.

A Southampton Employment Tribunal held on remission that the stable working relationship ended on that promotion, limiting the claim to later managerial roles. It refused reconsideration. The claimant appealed both decisions. The central issue was whether the internal promotion ended the stable working relationship for the six-month qualifying period under sections 129 and 130 of the Equality Act 2010.

1. Appeal allowed in part. The appeal against the substantive decision was allowed. The appeal against the refusal of reconsideration was dismissed because it raised no separate issue.

2. Sections 129(3) and 130(3) of the Equality Act 2010 require a broad and non-technical assessment of whether the working relationship remained stable. Following North Cumbria University Hospitals NHS Trust v Fox [2010] IRLR 804, the tribunal must consider the character of the work and the employment relationship in practical context. A material change in the type of work may be relevant, but it does not necessarily end the relationship.

3. The Employment Tribunal erred by elevating the change from technical to managerial duties, together with the pay increase and new grade, into a decisive consideration. It failed to give proper weight to the fact that the promotion was a temporary, internal and natural progression within the same department, initially under the existing contract. Those features were indicative of continuing stability.

4. Alternatively, the conclusion was perverse. No reasonable tribunal properly applying the law could regard this natural internal progression as breaking the stable working relationship.

5. There was only one permissible answer. The Employment Tribunal's decision was set aside and substituted with a finding that the relationship did not end when the claimant became Office Manager in June 2014. The case was returned to the Employment Tribunal for determination of the substantive claims.

• Employment Appeal Tribunal: This court allowed the appeal from the substantive Southampton Employment Tribunal decision, set it aside and substituted a finding that the stable working relationship continued on the June 2014 promotion. It dismissed the separate reconsideration appeal.
• Southampton Employment Tribunal: On remission, the tribunal held that the relationship continued from Business Support Officer to Fire Safety Officer but ended on promotion to Office Manager. Its reconsideration refusal was sent to the parties on 28 January 2019.
• Employment Appeal Tribunal: In the earlier appeal, HHJ Barklem allowed the claimant's appeal and remitted the issue for fresh determination: UKEAT/0179/18.
• Employment Tribunal: The earlier Kolanko tribunal had held that the relationship ended on moves from Business Support Officer to Fire Safety Officer and from Fire Safety Officer to Office Manager.