Equal Pay: Time Limits and New Contracts

[Summary written by Michael Duggan, barrister at Littleton Chambers and author of Equal Pay: Law and Practice (Jordans Employment Law Series 2009)]

The EAT has handed down an important judgment in Potter v North Cumbria Acute Hospitals NHS Trust (the Casson Claimants), which is authority for the proposition that the move from Whitley Council agreements to Agenda for Change does not constitute a new contract of employment, so that time does not star to run from the changeover.

Miss Potter and other lead Claimants were refused leave to amend their applications to change the comparators named in the originating applications by adding in different job groups on the ground that the move from Whitley Council to Agenda for Change constituted entering into a new contract of employment with the effect that the six month time limit ran from the date the Claimants were assimilated into AfC so that there was no jurisdiction to hear claims involving new comparators.

The EAT held that the Tribunal had erred in law and reached a perverse conclusion in deciding that the changes were so fundamental that an inference could be drawn that the parties intended to make a new contract. The move to AfC constituted a variation of the contracts and not their termination and replacement. The Tribunal therefore had a discretion to allow the amendments, so that the case was remitted to a Tribunal to exercise its discretion. The case is of some significance since it is not uncommon for new comparators to be added in this litigation as the cases progress.