Barnard v Hampshire Fire and Rescue, Court of Appeal - United Kingdom Employment Appeal Tribunal, October 12, 2018,  UKEAT 00179_18_1210
|Resolution Date:||October 12, 2018|
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||Barnard v Hampshire Fire and Rescue|
Appeal No. UKEAT/00179/18/LA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 1 & 12 October 2018
HIS HONOUR JUDGE MARTYN BARKLEM
MS V BARNARD APPELLANT
HAMPSHIRE FIRE AND RESCUE RESPONDENT
Transcript of Proceedings
An Employment Tribunal was charged with determining whether a ``stable working relationship'' was preserved when an employee had been promoted through a series of ranks. The concept of a ``stable employment relationship'' was created by the European Court of Justice in Preston & Others v Wolverhampton Healthcare NHS Trust & Others  ICR 961, a case concerned with women whose equal pay claims had been held to be time limited because their employment had not been continuous. The term was inserted into the Equal Pay Act 1970, in 2003, and, in the Equality Act 2010, was changed to ``stable working relationship''. In neither Act was the relevant term defined, and, in the Authorities which have considered it, the focus has been on the temporal nature of the employment relationship, and any breaks therein, and not on a changing work pattern over a continuous period of employment. Although words such as ``fundamental'' ``radical'' and ``significant'' have been used in describing the degree of change in terms of employment required to bring an end to the stable employment/working relationship, there has been no guidance as to the practical application of the test.
In the present case, the Employment Tribunal (which had very limited assistance from the case law) made only brief factual findings and failed to identify the proper nature of the test which it was purporting to apply. Accordingly, the findings under appeal were held to be perverse and also not ``Meek''- compliant, in failing properly to explain the basis for the Tribunal's decision. The case would be remitted to a fresh Employment Tribunal, with the recommendation that a constitution which included Lay Members would be advisable.
HIS HONOUR JUDGE MARTYN BARKLEM
This is an appeal against the Decision of the Employment Tribunal sitting at Southampton, Employment Judge Kolanko sitting alone, which held that, pursuant to sections 129 and 130 of the Equality Act 201 (``EqA''):
``1) The Claimant's stable working relationship ended when the claimant transferred from being a Business Support Officer to Fire Safety Officer, and when the claimant transferred from being a Fire Safety Officer to Office Manager. Accordingly the complaints in respect of equality of terms relating to the above roles have been brought out of time, and are therefore dismissed.
2) The claimant's stable relationship continued when she moved from being an Office Manager to Community Safety Delivery Manager. Accordingly complaints in respect of equality of terms in relation to the role of Office Manager were brought in time.''
This appeal was permitted to go to a Full Hearing by Laing J at the sift stage, when she commented:
``4. The Appellant contends, in short, that the ET erred in its approach to the phrase `stable working relationship'. I consider that this Ground of Appeal, variously expressed, is arguable. In paragraphs 20 to 21 of the Judgment, the ET appears to have equated `stable working relationship' with `stable work', or `doing' the same work', which may not be right.''
In this Judgment, I shall refer to the parties as they were below. Each was represented before me by counsel who had appeared below: Mr Daniel Matovu for the Claimant and Mr Tim Dracass for the Respondent. Each made focused and helpful submissions on the law, which broadly mirrored those made before the Tribunal, which set out the legislative history of the relevant provisions and the development of the case law in the Reasons.
The issue before me, as below, is as to the meaning of the phrase ``stable working relationship,'' which is not defined in the EqA nor in its predecessor the Equal Pay Act 1970, into which the term ``stable employment relationship'' was inserted by section 2(Z)(A) with effect from July 2003. Although the phrase has been the subject of authority, both counsel confirmed to me that their researches have uncovered none which is centred on the meaning of the phrase in terms of a changing work pattern over a continuous period of employment.
The concept of a stable employment relationship arose from a Decision of the European Court of Justice in Preston & Others v Wolverhampton Healthcare NHS Trust & Others  ICR 961. This was a referral from the House of Lords  ICR 227. At page 1001 of the report the European Court of Justice (``ECJ'') held at paragraph 72:
``72. The answer to the third question must therefore be that Community law precludes a procedural rule which has the effect of requiring a claim...to be brought within six months of the end of each contract of employment to which the claim relates where there has been a stable employment relationship resulting from a succession of short term contracts concluded at regular intervals in respect of the same employment to which the same pension scheme applies.''
The matter was thereafter remitted to the ET by the House of Lords, following which the matter came before the Employment Appeal Tribunal (``EAT'') (His Honour Judge McMullen QC) as Preston & Others v Wolverhampton Healthcare NHS Trust &Others (No 3)  IRLR 96, which I shall refer to as Preston (No. 3). Judge McMullen's Judgment was lengthy and dealt with many matters which do not arise in the present appeal.
However, his analysis of the features which constitute a ``stable working relationship'' is of importance. It begins at paragraph 115:
``115. It is therefore necessary to consider the `features that characterise a stable employment relationship' (ECJ judgment paragraph 70) and these can be broken down as follows:
(1) A succession of short-term contracts.
(2) Concluded at regular intervals.
(3) Relating to the same employment.
(4) To which the same pension scheme applies.
As to (1), this devolves into two parts. The subject matter must be short-term contacts. The House of Lords in its Order for Reference and in its consideration of the ECJ judgment when referred back to it has in mind as `short-term' contracts which are termly, or for the academic or sessional year. It follows that those contracts and anything for a shorter period are `short-term'. There must be a `succession' or a `sequence' (ECJ judgment paragraph 70). I interpret this to mean three or more, for the existence of two such contracts is not usually described as a sequence or a succession of such contracts. It would ordinarily be described as the repetition of a contract.
As to (2), the intervals which must be regular, this is described as `periodicity' which of course implies regularity. The periods are regular because they are clearly predictable and can be calculated precisely; and they are also regular where the intervals between work, and the length of the spells of work, are not to be predicted with accuracy; but nevertheless it is possible to say that the teacher, for example, is frequently, or even customarily, called upon whenever a need arises. This arises, by definition in the field of supply teaching, several times a term and thus may be described as regularly; but the precise dates cannot be calculated or predicted and so the work may accurately be described as intermittent.
As to (3) `same employment', no guidance is given. As to (4), the same pension scheme, it seems that the adoption of the expression `over-arching' is encompassed within the same scheme.
In order to succeed in bringing the test cases within the above framework, Mr Cavanagh submits that the chairman was wrong to find that the stable employment relationship ceases when the terms of the contract, or the work done, alter radically; that is, when a succession of short-term contracts is superseded by permanent contract (Reasons paragraph 251(3)(e)). But in the context of the analysis of the ECJ's judgment as applied by the House of Lords, the submission fails because feature (1) is missing. The succession of short-term contracts ceases, or is interrupted, when a new permanent contract is negotiated. It is not apt to describe a succession of short-term contracts and a permanent contract as a succession of short-term contracts. The succession is broken, and the nature of the contract changes from short-term to permanent. The submission also fails because there is no periodicity about the contracts. There is no interval, let alone a regular interval, between the contracts since on the footing of the test cases each relationship is regulated by a single permanent contract. Thirdly, the cases may also founder under feature (3) as not being in `the same employment'. I will examine this matter in more detail below. I would further agree with the chairman that, in respect of Mrs Cockrill, her claim would fail because the pattern of her working was too spasmodic and could not be characterised as meeting each of the features set out above. She would fail principally on feature (2): the lack of periodicity of the employments.
4. Similarity of terms and/or work
The chairman held (Reasons paragraph 233, 235) that;
`It is simply inconsistent with the nature of a stable employment relationship that the fundamentals of the succeeding contracts should vary...
The work must be for the same employer and be broadly the same throughout; that is it will be supply teaching though not necessarily at the same schools, or the same subject at the same key stages; or home teaching, but not necessarily the same subjects, or to the same pupils.... broadly the same throughout.'
It was contended that these words represent a gloss impermissibly put upon the words `stable employment relationship'. Or alternatively that they...
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