The Equality Act 2010 stipulates that claimants must bring their equal pay claims within six months of the end of their employment in order to preserve a “stable, working relationship”. In Barnard v Hampshire Fire and Rescue, the Employment Appeal Tribunal (EAT) held that a series of promotions within a small department would not necessarily break that relationship.
Ms Barnard was initially employed by Hampshire Fire and Rescue as a Business Support Officer (BSO). Following a series of promotions through the ranks she was subsequently employed as a Fire Safety Officer (FSO), Office Manager and Community Safety Delivery Manager (CSDM).
When she brought an equal pay claim relating to the entirety of her employment relationship, the question arose as to whether she had been in a "stable working relationship" throughout the time she had been employed by the fire service.
The concept of a "stable employment relationship" was introduced by the European Court of Justice in Preston and ors v Wolverhampton Healthcare NHS Trust and ors, 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 then inserted into the Equal Pay Act 1970, in 2003. It was then changed to "stable working relationship" in the Equality Act 2010, but was not defined in either Act.
The tribunal held that the move from the role of BSO to FSO did not “preserve a stable work case” as there was a difference in pay and responsibilities. Likewise, as the shift from FSO to office manager entailed “a significant change of role and responsibilities”, including the supervision of FSOs, “stable work” was not preserved.
However, in respect of the change from office manager to CSDM, Ms Barnard was doing effectively the same role and so a “stable working relationship” was preserved during this period of her employment.
The tribunal therefore dismissed her claims for equal pay during the periods when she had worked as BSO and FSO as being presented out of time, with the result that she could only claim equal pay from the time when she became office manager onwards.
Allowing the appeal, the EAT held that tribunals should apply a “non-technical broad-brush test” when examining the type of work done by a claimant during the period of employment in order to decide whether there had been an unbroken stable working relationship. In this case, the tribunal had failed to carry out a proper analysis of what the changes in work performed were or how and why they were said to amount to a significant change.
In particular, the EAT said that it would have expected the tribunal to set out the percentage pay increases between the different jobs, the precise differences in responsibilities and how, in relation to each identified factor, it was said to be "significant" or "fundamental" and an explanation of the sense in which that term was being used.
It could not see why a series of promotions within a small department with incremental changes to salary and responses (which, in the overall scheme of things, seem to be relatively modest, particularly when looked at incrementally), should not have the effect of preventing Ms Barnard from bringing an equal pay claim simply because she had been promoted.
It therefore remitted the case back to a different tribunal for it to reconsider its decision, recommending also that the presence of Lay Members and the workplace experience they would bring would greatly assist in the exercise to be carried out by the tribunal.
The decision of the EAT assists claimants by reinforcing the idea that the changes in a role which arise out of career progression do not always automatically trigger the time limit for pursuing a claim. Any such changes, and their effect, need to be carefully considered by a tribunal, with the full reasons for any decision reached recorded.