Judgments - Preston & Others v. Wolverhampton Healthcare N.H.S. Trust & Others and Fletcher & Others v. Midland Bank Plc

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    34. Unless, as is to be hoped and indeed expected, agreement can be reached as to which of the applicants had such a stable employment relationship, the question must be referred back to the Employment Tribunal.

    35. I would accordingly allow the appeal to the extent: (a) of declaring that the respondents cannot rely on the two-year rule in section 2(5) of the 1970 Act to prevent the applicants from retroactively gaining membership of the pension scheme in the period of employment back to 8 April 1976 or to the date of commencement of employment, whichever is the later, or from receiving pension benefits from such schemes which would otherwise have been due to be paid in the period after the application to the tribunal, calculated so as to take into account their service since 8 April 1976, so long as relevant pension contributions are paid by the applicants; (b) of declaring that the respondents cannot rely on the six months limitation in section 2(4) of the 1970 Act as amended, so as to require a claim for membership of an occupational pension scheme 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. I would refer the question as to which of the Appellants can satisfy that condition back to the Employment Tribunal.

    36. I would declare that the provision in section 2(4) in the cases where there is no stable relationship does not violate Community rules as to effectiveness and equivalence.

LORD GOFF OF CHIEVELEY

My Lords,

    37. I have had the opportunity of reading in draft the opinion prepared by my noble and learned friend Lord Clyde. I agree with it; and on the basis there set out I concur in the order proposed by my noble and learned friend Lord Slynn of Hadley

LORD NOLAN

My Lords,

    38. I have had the opportunity of reading in draft the speech prepared by noble and learned friend Lord Clyde. I agree with it; and on the basis there set out I concur in the order proposed by my noble and learned friend Lord Slynn of Hadley.

LORD HOPE OF CRAIGHEAD

My Lords,

    39. I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend Lord Slynn of Hadley. I agree with it, and for the reasons which he has given I would allow the appeal to the extent that he has indicated and make the same order as he has proposed.

LORD CLYDE

My Lords,

    40. Following on the reference made by this House the European Court of Justice has advised that the limitation period of six months laid down in section 2(4) of the Equal Pay Act 1970, as amended, is not contrary to Community law provided that "that limitation period is not less favourable for actions based on Community law than for those based on domestic law": paragraph 35 of the Court's judgment [2000] ICR 961, 996). This question now has to be resolved. It involves an application of the so-called principle of equivalence. The initial problem which has arisen is whether there is any action based on domestic law which will serve as a comparison, and if so, what it is.

    41. It is said of the comparable action, if it exists, that it is to be "similar" to the action based on Community law. Obviously that does not mean that it is to be identical. But the requirement of similarity or comparability is an inexact one and it is not immediately easy to identify the candidate for comparison, if it exists. The House sought guidance from the Court of Justice on this issue. This formed the second question put to the Court. In its judgment the Court has replied, at p 998, para 49:

    "In order to verify whether the principle of equivalence has been complied with in the present case, it is for the national court, which alone has direct knowledge of the procedural rules governing actions in the field of domestic law, to verify whether the procedural rules intended to ensure that the rights derived by individuals from community law are safeguarded under domestic law comply with that principle and to consider both the purpose and the essential characteristics of the allegedly similar domestic actions: see Levez v T H Jennings (Harlow Pools) Ltd (Case C-326/96) [1999] ICR 521, 544, 545, paras 39 and 43."

    42. In paragraph 57, at p 999, the Court, having answered the first part of the second question by holding that an action alleging infringement of a statute such as the 1970 Act, which was the means used by the United Kingdom of discharging its obligations under article 119 of the EC Treaty, did not constitute a domestic action similar to an action alleging infringement of article 119, answered the second part of the second question, which sought guidance on the criteria for identifying a "similar" action in domestic law, in these terms:

    "In view of the foregoing, the answer to the second part of the second question must be that, in order to determine whether a right of action available under domestic law is a domestic action similar to proceedings to give effect to rights conferred by article 119 of the Treaty, the national court must consider whether the actions concerned are similar as regards their purpose, cause of action and essential characteristics."

    43. The sole candidate which the applicants have put forward as a comparator is an action for breach of contract. The respondents have replied that the action based on Community law is sui generis and that there is no comparable action. If one applies the criteria laid down by the Court there seems to me to be considerable force in that submission. The claim under Community law was regarded by the Advocate General, in paragraph 95 of his opinion, at p 982, as "concerned not with arrears of pay or other remuneration but with retroactive membership for the claimants of an occupational pension scheme". If one then looks to the considerations of purpose and cause of action, or the essential characteristics, being the criteria specified by the Court of Justice, it seems to me that the action under Community law is in essence requiring a provision to be added to the terms of the claimants' contracts of employment which ought to be there in order to comply with the law. The purpose of such an action is the establishment of a right which should in accordance with European law be recognised in the United Kingdom and should be among the terms of the contracts of employment. On the other hand if the criteria are applied to the suggested action under domestic law, it seems to me that that action would in essence be one which proceeded upon a breach of contract, on the basis that the employer had failed to observe an obligation in the contract which gave the right to membership of the pension scheme to the employee in question, and the purpose of the action, being one for breach of contract, would presumably be to obtain an award of damages. I have considerable difficulty in seeing that as between these two actions one would be comparing like with like. If there is no comparator, that is an end of the case.

    44. But it may be that this is to apply too strict or precise a standard for the comparison. Certainly the Advocate General was able to conceive that a comparator might exist. In paragraph 101, at p 983, he stated that:

    "I consider that, in order to comply with the principle of equivalence, the House of Lords might regard as 'similar' to the claims in the main proceedings an action under domestic law by a part-time worker who, for reasons unconnected with discrimination on grounds of sex or race, has been unlawfully excluded from membership of an occupational pension scheme, even though his employer knew or ought reasonably to have known that such exclusion was illegal."

    If one adopts a broad view of the exercise of comparison I can see that an action for breach of contract might well be accepted as an appropriate comparator. To use the language of my noble and learned friend Lord Slynn of Hadley, whose speech I have had the advantage of reading in draft, the suggested action for breach of contract "may provide a sufficiently similar comparison".

    45. But even if by that standard the principle of equivalence can be satisfied I do not consider that the applicants should succeed. On the basis of the wider approach to the problem of comparison which my noble and learned friend Lord Slynn of Hadley has adopted I am in full agreement with him that the rules of procedure for a claim under section 2(4) of the 1970 Act are not less favourable than those which would apply to a claim for breach of contract in the circumstances of the present cases. I would accordingly agree with the conclusion which he has reached and with the form of order which he proposes.

 
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