Post termination bodies
Labour & European Law Review Weekly Issue 460 09 March 2016
The Equality Act states that an employee can bring a discrimination claim against a former employer. In Butterworth v the Police and Crime Commissioner’s Office for Greater Manchester and anor, however, the Employment Appeal Tribunal (EAT) held that the former employee of a police authority could not bring a claim against the body that took over from the authority as she had never been employed by it.
Ms Butterworth worked for many years for the Greater Manchester Police Authority (GMPA) until 2011 when she left under the terms of a settlement agreement.
Eighteen months later, the GMPA ceased to function and its policing role was taken over by the Office of the Police and Crime Commissioner (PCCO) under the Police Reform and Social Responsibility Act. Paragraph 5, schedule 15 of the Act stated that all property, rights and liabilities of the GMPA transferred over to the PCCO. Under paragraph 6(4), the employment contracts of existing employees also transferred over, along with all the GMPA’s rights, powers, duties and liabilities.
Ms Butterworth brought claims of sex discrimination, harassment and victimization against the PCCO, on the basis that it had inherited the rights, powers, duties and liabilities of the GMPA, which included the liability for any obligations not to discriminate against her. Alternatively, she argued that she could rely on section 108 of the Equality Act which allowed her to bring a post-termination claim of discrimination and victimization.
Section 108 states that a person must not discriminate against someone else if “the discrimination arises out of and is closely connected to a relationship which used to exist between them”.
The tribunal dismissed her claim and Ms Butterworth appealed to the EAT that schedule 15 had transferred over the obligation not to discriminate against her from the police authority to the PCCO.
The EAT, however, disagreed. It pointed out that paragraph 5 of schedule 15 referred only to the property, rights and liabilities that transferred over to the PCCO as opposed to the “duties” (which included the obligation not to discriminate) and “liabilities” mentioned in paragraph 6(4). As this paragraph only applied to employees who were employed immediately before the PCCO took over from the GMPA, Ms Butterworth could not bring a claim of discrimination against the Commissioner’s Office.
The EAT also rejected her section 108 claim on the basis that the Act called for a relationship that “used to exist between them”. In other words, the parties to a previous employment contract. Parliament had included the words “between them” for a good reason and they could not be ignored as “mere surplusage”. As Ms Butterworth was not and had never had been an employee of the PCCO, she could not rely on section 108 to bring a claim of discrimination.