THE INDUSTRIAL TRIBUNALS

CASE REF:	10003/95 sd/ep

CLAIMANT:			Eithne McColgan

RESPONDENTS:		1.	WHSSB
2.	Department of Health & Social Services & Public Safety

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the claimant’s claim against the respondents is dismissed on the grounds that it is out of time, having been presented after the statutory time limit has expired; and the tribunal therefore has no jurisdiction to hear the said claim.

Constitution of Tribunal:
Chairman (sitting alone):		Mr N Drennan QC

Appearances:
The claimant was represented by Ms M Durkan, Barrister-at-Law, instructed by Thompsons, Solicitors.
The respondent was represented by Mr W P Johnston, Solicitor, of The Departmental Solicitor’s Office.

Reasons

1.	This pre-hearing review was arranged to consider the following issues:-

(i)	Whether the claim was presented within the statutory time limit?

(ii)	If yes, whether the claim has any reasonable prospect of success.

2.	It was agreed, at the outset of the proceedings, that the tribunal, at this pre-hearing review, would only consider the first preliminary issue relating to time.  If the tribunal found that the claim was in time, it was agreed a Case Management Discussion would then be arranged to consider the way forward, in light of the tribunal’s decision on the said preliminary issue, and to give such further and other consequential case management directions and orders as may be appropriate in the circumstances.

3.	The claimant, in her claim, seeks a Declaration that she is entitled to retrospective membership of her employer’s Occupational Pension Scheme (‘NHS Pension Scheme’) for the period from 15 August 1979 to 21 February 1982, and that she was unlawfully excluded from the said Scheme because of her part-time status.  

4.	The claimant presented her claim to the tribunal on 22 December 1994; and the respondents contend that the claimant’s claim is out of time and the tribunal does not have jurisdiction to hear the claimant’s claim.

5.	The claim is brought under the Equal Pay Act (Northern Ireland) 1970.  The time limit for bringing such proceedings is set out in Section 2(4) of the said Act which provides as follows:-

2(4)	“A claim in respect of the operation of an equality clause relating to a woman’s employment shall not be referred to an industrial tribunal, otherwise than by virtue of Sub-Section (3), if she has not been employed in the employment within the six months preceding the date of the reference.”

Section 2(4) of the said Act has now been amended by the provisions of the Equal Pay Act (1970) (Amendment) Regulations (Northern Ireland) 2004; but those provisions do not apply to these proceedings as the claimant’s claim was commenced prior to the date of the commencement of the said Regulations on 28 April 2004.  

There is no power to extend the said six month time limit in any circumstances.

6.	The meaning of the phrase ‘in the employment’ has been determined in the case of Preston & Others  v  Wolverhampton Healthcare Trust & Others [1998] ICR 227 HL, where it was held that it did not refer to the overall employment relationship between the parties but the contract of employment in respect of which the complaint is made.  Thus, the six month time limit provided for in Section 2(4) of the 1970 Act runs from the end of the contract under which the employee is employed, whose equality clause, which is implied under the said Act into the contract of employment of every woman, has been broken.

7.	The House of Lords referred to the European Court of Justice (‘ECJ’) the question whether the said time limit was compatible with a claimant’s rights under Article 141 EC and found there was some incompatibility.  The ECJ said:-

“67	As pointed out in Paragraph 33 of this judgment, the court has held that the setting of reasonable limitation periods is compatible with community law in as much as the fundamental principle of legal certainty is thereby applied.  Such limitation periods cannot therefore be regarded as capable of rendering virtually impossible or excessively difficulty the exercise of rights conferred by community law.

68	Whilst it is true that legal certainty also requires that it be possible to fix precisely the starting point of limitation period, the fact nevertheless remains that, in the case of successive short term contracts of the kind referred to in the third question, setting the starting point of the limitation period at the end of each contract renders the exercise of the right conferred by Article 119 of the EC Treaty excessively difficult.

69	Where, however, there is a stable 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, it is possible to fix a precise starting point for the limitation period.

70	There is no reason why that starting point should not be fixed as the date on which the sequence of such contract has been interrupted through the absence of one or more of the features that characterise a stable employment relationship of that kind, either because the periodicity of such contracts has been broken or because the new contract does not relate to the same employment as to that to which the pension scheme applies.

71	The requirement, in such circumstances, that a claim concerning membership of an Occupational Pension Scheme be submitted within the six months following the end of each contract of employment to which the claims relates cannot therefore be justified on grounds of legal certainty.

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 that 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.”

8.	The case returned to the House of Lords for further consideration and is reported at Preston No 2 [2001] ICR 217.  At Page 229, Lord Slynn of Hadley said:-

“33	Accordingly it is clear that where there are intermittent contracts of service without a stable employment relationship, the period of six months runs from the end of each contract of service, but where such contracts are concluded at regular intervals in respect of the same employment regularly in a stable employment relationship the period runs from the end of the last contract forming part of that relationship.”

9.	In the case of Jeffery & Others  v  Secretary of State for Education & Others [2006] ICR 1062, Elias J (President), at Paragraphs 17 and 18 of his judgement expressly agreed the analysis of Judge McMullen QC in the case of Preston (No 3) [2004] ICR 993, where he had considered the decisions of both the ECJ and the House of Lords (see Paragraph 112 – 118), and where he had made clear that the ability to make use of the said exception was limited to those cases satisfying the conditions defined by the Court of Justice and adopted by the House of Lords:-

“17 …	although in layman’s terms, it may understandably be said that entry into a permanent job does not destroy a stable employment relationship, that concept in the context of this jurisdiction is a very much more precise one.  As Judge McMullen QC pointed out, at Paragraph 118:-  “It is not apt to describe the succession of short term contracts and a permanent contract as a succession of short term contracts.”

18	I  entirely agree with his analysis on this point.  In my judgment, it cannot be said that there is a continuation of the stable employment relationship into a new permanent contract.  To put it my own words, the concept of a stable employment relationship has the effect of requiring a series of intermittent contracts or temporary contracts to be treated as if they were a single contract terminating at the conclusion of the last of those sequential contracts.  But this only modifies the basic principle that time runs from the end of each contract in the very precise circumstances identified by the Court of Justice.  It does not permit an employee to treat a succession of contracts not falling within those criteria as amounting to a single stable employment relationship.  If that were right, it would mean that, in practice, in almost all cases employees would be able to bring claims within six months of the termination of the employment relationship with a particular employer, however many separate contracts there may have been during the course of those relationships, and whether they were short term, long term or, indeed, whatever form they took.  That would involve a fundamental change in the law which is plainly not the effect of the decision of the Court of Justice.”

10.	The claimant gave oral evidence to the tribunal.  The respondents did not call any evidence. 

11.	The following relevant material findings of fact were made:-

(a)	The claimant commenced employment with the first-named respondent on 15 August 1979, as a Senior II Dietician.  In that position, she was temporary part-time.  The post was temporary, because the post was for a full-time person, which remained vacant.  Apparently, the claimant did not want, due to her family commitments, to take on the full-time post.  The claimant, in evidence, readily recognised that, if a full-time person had been subsequently recruited by the first-named respondent, her said temporary part-time post would have thereby ended.  She worked 16 hours per week, which was less than half the standard full-time hours of 361/2 hours per week; and was not entitled, under its then terms, to join the said pension scheme.  Although there was an absence of relevant contractual documentation for this period, it would appear that the claimant continued to be employed by the first-named respondent in the above post until on or about 21 February 1982, when she increased her hours to 181/2 hours per week.  This was more than half the standard full-time hours and meant that the claimant was entitled from that date to join the said pension scheme.  The claimant joined the pension scheme from on or about 1 March 1982; and remained in the said scheme until her retirement in or about November 1997.  

(b)	When the claimant increased her hours there were no material relevant changes in her duties or job description; and there was no evidence that any new contractual documentation was issued to her in relation to the above changes in her hours.  She remained temporary part-time Senior Dietician II.

(c)	On or about 1 September 1983, the claimant became Senior I Dietician.  She remained part-time but, unlike previously, her position became permanent.  On or about 1 January 1984 the claimant, as a Senior I Dietician, ceased to be part-time permanent and became   full-time permanent.  Again, the claimant’s duties remained the same.  She continued to be based, as before, at Altnagelvin Area Hospital, where she continued to be responsible for supervising the Paediatric Unit in the hospital.  She worked with patients, both on the hospital wards and from referrals from various clinics to ensure they followed diets which had been complied for them.  She also had responsibilities relating to the issue of written material to other staff in the hospital dealing with dietary matters.  Again, there was no evidence that any new contractual documentation was issued following the above changes; and the claimant, in particular, had no recollection of receiving any such new contract of employment.

(d)	On or about 8 April 1987, the claimant applied for the position of Chief II Area Dietician for the first-named respondent.    She had to apply in writing using the first-named respondent’s formal application form.  She was successful, following interview, in obtaining the said post.  It is to be noted that there was no application or interview when she had moved from Senior II Dietician to Senior I Dietician, nor when she moved from temporary part-time, and subsequently to permanent part-time and then full-time permanent.  On her appointment as Chief II Area Dietician, she continued to be based at Altnagelvin Area Hospital and to work with the different categories of patients referred to previously.  However, in addition, the claimant had responsibility for managing dietetic apartments in other hospitals in the area, not just the unit at Altnagelvin.  She remained in the above position until her retirement in 1997.

(e)	By letter dated 17 June 1987, the claimant accepted the offer of the post of Chief II Area Dietician, subject to a satisfactory medical examination, which she passed.  A formal letter of offer of employment, setting out the relevant terms and conditions was sent to the claimant on 3 July 1987; she accepted the said terms and conditions when she signed the letter on 20 July 1987.

(f)	Under the said terms and conditions it was provided, inter alia, ‘the appointment will be subject to confirmation after a probationary period of not less than six months’.  The claimant, who was very successful in her said position, completed the said probationary period and was clearly confirmed in her position; albeit no formal documentation stating so has been able to be found.  The said letter, setting out the relevant terms and conditions of employment did not refer to any previous employment by the claimant with the first-named respondent.  The claimant also produced, in evidence, a document, provided on discovery by the first-named respondent, relating to staffing changes in relation to a re-organisation of the first-named respondent in or about 1990.  It referred to the claimant’s present post as Chief II Dietician Altnagelvin Area Hospital; it referred to her date of appointment as 15 August 1979 (plus five years aggregated service) and stated that her new post, under the staff re-organisation, was Chief Dietician III.  The change between Chief Dietician II and Chief Dietician III was of no relevance to this matter.

12.	The claimant’s representative, Ms Durkan, submitted that the claimant had been employed by the first-named respondent from in or about August 1979 and that any changes in her employment since that date until her retirement in or about 1997, as set out above, were really variations of her existing contract consequence on a career progression and that her contract of employment had not been broken at any time during the said period; and that her claim, having been brought in December 1994, during the above period, was therefore in time.

13.	Mr Johnston, on behalf of the respondents, submitted that time began to run from on or about 1 January 1984, when the claimant who was by then a Senior I Dietician, albeit part-time permanent, became full-time permanent.  He submitted that this change brought about the end of the previous stable employment relationship between the claimant and the first-named respondent and referred to the authorities set out in Paragraph 6 of this decision.  He also tentatively suggested time might have run from an even earlier date, when the claimant changed from temporary part-time Senior I Dietician to permanent part-time Senior I Dietician on or about 1 September 1983.  Mr Johnston fully recognised that, in relation to any of the above changes, he was not in a position to refer to any relevant contractual documents, and had not called any relevant oral evidence in relation to the above changes.  However, his principal submission, if the tribunal was not in agreement with his earlier submission, was that time began to run from in or about July 1987, when the claimant applied for and obtained the post of Area Dietician Chief II.  He submitted that the offer and acceptance of this appointment by the claimant was a new contract of employment.  This was a break in the previous stable employment relationship which had existed between the claimant and the first-named respondent over the previous period and thereby caused time to start from July 1987, in relation to the six month period for the claimant to bring the necessary proceedings.  He relied, in particular, on the fact that the claimant was required to apply for the post, to be interviewed; and the offer was subject to a completion of a successful medical examination.  He also referred to the contractual document the claimant was required to sign on taking up the new post, which included the requirement for a probationary period of six months to be served, before the claimant would be confirmed in post.  As Mr Johnston readily recognised the claimant clearly was very good at her job.  However, Mr Johnston pointed that if she had proved to be unsatisfactory in her probationary period and had not been confirmed in post then she would not have been able to continue employment with the first-named respondent.  Without prejudice to this submission, Mr Johnston contrasted what occurred, in relation to this appointment, with the previous situations when she had moved from Senior Dietician II to Senior Dietician I; and also moved from temporary part-time to permanent part-time and subsequently permanent full-time.  He pointed out there was no reference in the new contract to any previous employment with the first-named respondent.  He emphasised the new responsibilities to which she had been appointed – which involved a much greater line management role in both Altnagelvin and in other hospitals/units in the area.  He submitted that since began time to run in July 1997; the claimant’s claim, which had not been made until December 2004 was clearly outside the relevant six month statutory time limit, which would have expired six months after July 1987.

14.	It was therefore necessary for me to consider whether at any time there was any relevant break in the claimant’s contract of employment with the first-named respondent, causing the six month time period to commence.  

15.	I came to the conclusion that what occurred in July 1987, on the claimant’s appointment as Area Dietician Chief II, amounted to more than a mere variation/amendment of her previous contract; but denoted a break in her contract of employment or stable employment relationship, which had existed prior to her appointment to the said post in July 1987, and from which time began to run.  In so concluding, I noted the fact that she was required to apply for the position, that she had had to attend an interview and the offer of the position was subject to a medical examination and a probationary period before confirmation.  She was required to sign a new contractual document, setting out her terms and conditions.  The post involved new duties and line management responsibilities, not only in Altnagelvin but other hospitals/units in the area.  This was to be contrasted with the absence of any application/interview/offer and acceptance of terms and conditions of employment relating to the new position and the necessity to satisfy a probationary period before confirmation, whenever she had changed her position from Senior II Dietician to Senior I Dietician and/or had moved from temporary part-time to permanent part-time and/or full-time permanent.  I considered carefully the re-organisation document, setting out the staff changes in such re-organisation.  This was clearly an administrative document, setting out the claimant’s new job title under the        re-organisation.  Further, in my opinion, it merely reflected, in layman’s language, as referred to by Elias J in the case of Jeffery, the fact that the claimant had originally begun an employment relationship with the respondent in August 1979.  The House of Lords made clear in Preston ‘in the employment’ does not refer to the overall employment relationship but the contract of employment in respect of which the complaint is made.  It was not a contractual document, and, in my opinion, did not alter my conclusion that the claimant had entered into a new and fundamentally different contract of employment, when she accepted, in July 1987, the offer of employment of Area Dietician Chief II.  In my opinion, the said change in July 1987, amounted to a fundamental/radical change in the nature of the relationship between the parties and their obligations such as to amount to a new contract as a matter of law.  Her previous employment relationship with the first respondent ended when she entered into the new contract, upon her appointment to the position of Area Dietician Chief II.  

16.	Having been satisfied that time had begun to run from in or about July 1997 I concluded that, in the circumstances, the tribunal therefore had no jurisdiction to hear the claimant’s claim; since she had not commenced her proceedings until December 1994, which was outside the said statutory six month period which had commenced in or about July 1987.

17.	In view of my conclusions, as set out above, I did not find it necessary to consider further the respondents’ alternative submission that time had begun to run earlier than July 1987; and in particular whether there had been any earlier break in the stable employment relationship from August 1979 until July 1987 and, if so, at what date.

Chairman:

Date and place of hearing:	26 April 2007, Belfast

Date decision recorded in register and issued to parties: