Equal pay: 'stable working relationship' not necessarily broken by promotion

Barnard v Hampshire Fire and Rescue

A promotion or change in role within the same organisation will not necessarily amount to a ‘radical’, ‘fundamental’ or ‘significant’ change so as to break a ‘stable working relationship’ for the purposes of calculating time limits for an equal pay claim.

A claimant has six months to bring an equal pay claim in the employment tribunal, but the start of that limitation period depends on how the case is classified. Most equal pay claims are ‘standard’ cases and the time limit runs from the end of employment. However, where there have been several different jobs or a series of breaks in employment (as happened in relation to the many thousands of part-time employees who brought claims in relation to the exclusion of part-time employees from pension schemes), then provided they can show a ‘stable working relationship’ despite those breaks, then the six-month time limit starts with the day on which the ‘stable working relationship’ ended. Unfortunately, the expression ‘stable working relationship’ is not defined in the Equality Act 2010.

Background

Mrs Barnard was employed by Hampshire Fire and Rescue in a series of roles (Business Support Officer, Fire Safety Officer, Office Manager and Community Safety Delivery Manager) which included two promotions. She brought an equal pay claim relating to the entirety of her employment. For her claim to succeed, the tribunal needed to be satisfied that she had been in a ‘stable working relationship’ throughout her employment. It held that her promotions from Business Support Officer to Fire Safety Officer to Office Manager (involving significant differences in pay and responsibilities between the roles) amounted to a significant change to her employment and broke continuity of a stable working relationship – and thus this part of her claim was out of time. However, her move to Community Safety Delivery Manager did not and the claims from when she was an Office Manager were in time. Mrs Barnard appealed.

EAT decision

Allowing her appeal, the EAT applied earlier Court of Appeal authority which stated that when considering whether there has been a stable working relationship, tribunals should apply a broad, non-technical test and look at the character of the work and the employment relationship in practical terms.

A stable working relationship could be maintained through a series of promotions said the EAT. The tribunal had not explored the nature and extent of the changes between the roles or explained why it regarded those changes individually and collectively as ‘significant’.

The EAT was persuaded by Mrs Barnard’s argument that a series of promotions within a small department with incremental changes to salary and responsibilities should not have the effect of preventing her from bringing an equal pay claim simply through having been promoted. It would be surprising if a concept originally devised to assist women in pursuing equal pay claims had the opposite effect.

The EAT sent the case back to a different tribunal to be head again.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2018/00179_18_1210.html

Comment

It would be a surprising concept indeed if getting a small internal promotion and incremental pay rise could affect the ability to bring an equal pay claim. That said, there may have been something more to the case which the tribunal failed to put in their judgment, given that they did consider that one change of job role did not break a stable working relationship, but the others did.

It is a useful reminder to employers of the ability to try and argue this if there really has been a significant change in role.