Equal pay means an employee is entitled to the same wages as someone doing work of equal or equivalent value. If a person is not being paid equally, they can bring an equal pay claim and allows for a claim of up to a maximum of six years of lost earnings. In order to bring an equal pay claim, it must be brought within six months. The start of this limitation period depends on the classification of the case. Where there is a “stable working relationship”, the beginning of this period is the day on which the stable working relationship ended and not when a contract is superseded by another. There is no statutory definition of a stable working relationship and so establishing one has been the subject of many previous cases.
The Employment Appeal Tribunal has ordered a re-trial in a case that argued promotions in the same organisation should fall within the definition of “stable working relationship” and therefore the entirety of the employee’s employment should be assessed in an equal pay claim. The Employment Appeal Tribunal offered guidance as to the approach a Tribunal should take when determining if promotions fall within the definition and provided the first Tribunal did not provide an adequate explanation for its judgment. Barnard v Hampshire Fire and Rescue UKEAT/0179/18
Mrs Barnard was employed by Hampshire Fire and Rescue in a series of roles and was promoted each time starting as: station administrator, business support officer, fire safety officer, office manager until she was promoted to community safety delivery manager. She brought an equal pay claim relating to the entirety of her employment and the tribunal had to decide whether any part of the claim was out of time throughout the entirety of her employment. The Employment Tribunal held that her stable working relationship ended when she transferred from business support officer to fire safety officer and again when she changed to business office manager. The Tribunal considered there were significant differences in pay and responsibilities between these roles and as such Mrs Barnard was out of time for complaints relating to the period prior before becoming a business office manager. She appealed the decision to the Employment Appeal Tribunal.
The Employment Appeal Tribunal identified that a Tribunal should apply a non-technical broad brush to examine the character, nature, type of work and the employment relationship in practical terms, such as to determine whether an unbroken stable working relationship subsisted.
The EAT concluded that a series of promotions requiring increased skill within a small department with incremental changes to salary and responsibilities should not have the effect of preventing Mrs Barnard from bringing an equal pay claim simply through having been promoted. It would be surprising if a concept devised to assist women in pursuing equal pay claims had the opposite effect. In the first hearing the Tribunal failed to explain why each role was significantly different to each other. Therefore, it had been perverse to find that Ms Barnard’s to find that Ms Barnard’s promotions had not preserved a stable working relationship and the case has been resubmitted to a fresh tribunal.
The implications are dependent on the findings of the Tribunal, as a fresh hearing is to take place. If they do find in favour of Mrs Barnard, there may be consequences for employers who do not pay attention to remuneration. Employers should be assessing whether they are paying staff equally for equivalent work. Failure to do so could mean a claim spanning the past six years of an individual’s employment and could see claims brought for historic roles in the organisation. For an employee, a claim may be of substantial value and it is hopeful that the Tribunal will give detailed findings for their decision at the next hearing.