Part timers and backdated pension rights

Preston v Wolverhampton Healthcare NHS Trust and Fletcher v Midland Bank Plc unreported May 2000 ECJ

• In 1994 the ECJ ruled that excluding part-time workers from occupational pension schemes constituted indirect discrimination. Around 60,000 tribunal claims were brought seeking retroactive membership of pension schemes.

In the Preston and Fletcher test cases it was argued the Equal Pay Act was incompatible with community law, specifically Article119 (now Article 141) because it required workers to bring claims within six months of employment ending and restricted entitlement to membership to a period of two years from the commencement of proceedings. The tribunal dismissed the claims as did the EAT and Court of Appeal.

The House of Lords referred certain preliminary issues to the ECJ which held that the time limit of six months was not incompatible with community law provided that limitation periods for domestic actions were not less favourable than for actions based on community law. The two year limit, however, was incompatible and membership claims could be backdated to 1976 (when the ECJ first required equality in pensions) although where there are contributory schemes backdated contributions have to be paid by the part timer.

Establishing the effective date of termination

Drage v Governors of Greenford High School IRLR Volume 29 May 2000 Court of Appeal

• Drage was suspended on full pay pending a disciplinary hearing after allegations of gross misconduct. Following the hearing, Drage was summarily dismissed by a letter dated 17 February 1996. The school’s dismissal procedure provided the employee could appeal “before any action is taken to implement [the decision to dismiss]”. Drage was informed by a letter dated 13 March that his appeal was unsuccessful, that his employment terminated that day and that he would be paid to that date. He submitted an unfair dismissal claim on 11 June. The tribunal and EAT held he was out of time because the effective date of termination was 17 February.

The Court of Appeal allowed Drage’s appeal. It held that between dismissal and appeal Drage was suspended on full pay. His employment terminated on 13 March as stated in the letter. It was not the case that Drage had been dismissed with the possibility of being reinstated after a successful appeal.

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