It is now generally accepted that an employer can't exclude a worker from membership of an occupation pension scheme on the basis of their part-time status.
Although that may seem like an obvious thing to say, the litigation leading up to that conclusion has been complex and has given rise to a large number of test cases - about 60,000 in all, many of which were lodged almost a decade ago.
In Preston & Ors v Wolverhampton Healthcare NHS Trust & Ors no.3 (IDS Brief 750), the Employment Appeal Tribunal (EAT) has just considered appeals on a number of complex points arising from some of these test cases.
But what was the history to these cases?
Known as the 'Preston' cases for short, the women brought their claims under the Equal Pay Act 1970 and Article 141 of the EC Treaty. They complained that they had been unlawfully excluded from membership of a number of different occupational pension schemes, simply because of their part-time status.
Anyone wanting to bring a claim had to lodge it within six months of leaving the employment where they had been excluded from the scheme, and claims could only be backdated to 8 April 1976.
The successful applicants were given an entitlement to backdated pension scheme membership, rather than financial compensation for loss of their pension rights.
What did the test cases deal with?
- The test cases dealt with a variety of situations including:
part-time workers who had moved from one employer to another either voluntarily or as a result of a TUPE (Transfer of Undertakings) transfer
part-time workers who had been employed under a series of fixed-term contracts
part-time workers who worked sufficient hours to be technically eligible to join their employer's pension scheme, but were not informed of their right to do so.
How do the time limits work in TUPE transfers?
Where a worker has had her employment transferred under the TUPE regulations from one employer to another, the EAT has ruled that the six month time limit for bringing a claim against the transferor does not start running until the date that the worker leaves the employment of the transferee.
This is a positive decision that would help many workers who were transferred from one employer to another. However, the employers are appealing against this decision and the case will now go to the Court of Appeal.
Had the employers breached equal pay law?
The part-timers argued that their employers had breached equal pay law by excluding them from membership of a pension scheme, for which membership was obligatory for full-timers.
The EAT agreed. It said that exclusion of part-timers in such circumstances did constitute a breach of equal pay law.
But was there a breach if membership was compulsory for full-timers, and voluntary for part-timers?
The EAT said no - a worker who had to opt in to membership of a pension scheme was not treated less favourably than someone for whom membership was obligatory.
Can a part-timer bring a claim if they weren't told they could join the scheme?
The EAT ruled, on the whole, that the employers had not breached equal pay law by failing to inform the part-timers that they were now eligible to join the pension scheme.
There would probably only be a breach if the worker was able to show that their employer operated a 'policy' or 'practice' of not informing their part-time workers of their pension scheme eligibility.
This decision may well create difficulties for workers who find themselves in this situation, as many may not be able to prove the existence of a discriminatory policy or practice - as opposed to, for example, simple incompetence by the employer.